On Wednesday, a post by Orin Kerr at the Volokh Conspiracy threw the blawgosphere into a tizzy.  It’s title was District Judge Concludes E-mail Not Protected by Fourth Amendment, and the word spread like wildfire. 

On Thursday, Orin corrected himself, noting that the decision doesn’t say that emails aren’t protected by the Fourth Amendment at all.

In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers.

First, don’t blame Orin.  He’s allowed to make a mistake, and more importantly, he corrected himself as soon as he realized the error.  But what of the rest of the blawgosphere?  Just as Orin caught the error upon reading the decision more closely, why didn’t all the others who offer themselves as having opinions worthy of some modicum of respect figure out that Orin’s initial post was wrong?

Lest I appear to come off a bit too holy, I didn’t join the fray immediately following Orin’s post, even though I read his post and received a few emails from others about it, asking for my thoughts.  Had I done so, it’s quite likely that I would not have read the decision carefully and would, instead, have relied on Orin’s post for its conclusion.  In other words, the only thing that saved me from being swept along with the tide was that I just chose not to write about it yesterday.  Had I written about it yesterday, chances are good that I would have fallen into the trap of blindly accepting Orin’s initial analysis.

All of this demonstrates two things:  First, that Orin Kerr, Professor at George Washington Law School, commands such extraordinary credibility that the most of us will blindly accept his conclusions as accurate.  There aren’t too many people who have earned that degree of credibility in the blawgosphere.

Second, that the rest of us, and I include myself in this group, must be responsible for our own heavy lifting.  Decisions are there to be read, digested and, if warranted, discussed.  Yes, they can be long and boring at times, and suck up time that could be saved by relying on someone we trust, like Orin Kerr.  It’s far easier to read the out-take, the quote, the except, and slide comfortably into the conclusion for purposes of discussion.  But if we do so, and it turns out that our face is smeared with egg, it’s no one’s fault but our own. 

The decision of Judge Mosman, which I’ve since read from cover to cover, isn’t a monumental one, and suffers from the same flaws that I’ve written about numerous times, the failed approach of applying historic 4th Amendment precedent to the digital world by way of analogy.  This comports with Orin’s “technology neutral” approach, with which I’m troubled.  Notably, Judge Mosman cited Orin throughout his decision.  I wasn’t cited at all.  Go figure.

The confluence of these two things, Orin’s mistaken post and Judge Mosman’s decision, should serve as a warning to the blawgosphere.  We’re in a state of flux, both the law as it relates to this ever-changing digital world and the digital world as it relates to the law.  Only in retrospect will we know when both have matured to a point where it’s sufficiently reliable and accurate that we can trust it.  Until then, both need to be taken with a grain of salt, and recognized as part of a struggle to find our way.

Orin Kerr has proven himself both a gentleman and a scholar, as noted in a comment to his clarification.  In this regard, he has confirmed the trust that the blawgosphere has placed in him.  I’m just glad I sat on the sidelines long enough not to make a fool of myself.