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In 2014, regarding the forced disclosure of the encryption keys of his email service provider company Lavabit, Ladar Levison wrote:

The largest technological question we raised in our appeal (which the courts refused to consider) was what constitutes a "search", i.e., whether law enforcement can demand the encryption keys of a business and use those keys to inspect the private communications of every customer, even when the court has only authorized them to access information belonging to specific targets.

The emphasis is mine.

Assuming Levison's statement to be true, my question is: is there a way in which one or more relevant courts could be made to consider, and issue a verdict on, that question; and if so, how?

Clarity on the matter would seem to be in the public interest, after all.

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    That comment you emphasized regards only the current case. There are numerous cases in which the court has determined whether a search is reasonable. I don't know what court ruled without deciding that issue, but as long as it is not the SCOTUS, you can always appeal and make a more ardent plea for considering that issue. – Andrew Jul 6 '15 at 18:32
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Federal courts can issue opinions on any issue for which an appellant has standing. They tend to rule only as broadly as necessary to decide the particular case or controversy in front of them. Federal courts can also deny appeals. For both of those reasons, they cannot be forced or made to define the limits of reasonable search.

However, the US Supreme Court has clarified many times whether a particular behaviour constituted a search, and if so, whether it constituted a reasonable search.

In Katz v. United States 389 U.S. 347 (1967), the court held that attaching a listening device to the exterior of a telephone booth constituted a search, and that it was an unreasonable search.

In Smith v. Maryland 442 U.S. 735 (1979), the court held that using a pen register to obtain the records of phone numbers that were dialed by an individual was not a search.

In United States v. Jones 565 U.S. ___ (2012), the court held that installing a GPS on Jones's car was a trespass and per se an unreasonable search.

In Heien v. North Carolina 574 U.S. ___ (2014), the court held that a seizure and subsequent search is reasonable if based on an officer's reasonable mistake of law.

There are many more.

As an example of the U.S. Supreme Court explicitly avoiding a broader ruling than necessary to decide the case before them, see United States v. Jones:

It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.

It was possible to decide the case based solely on the trespassory test, so the majority didn't go further.

  • Do you mind citing your cases? – Andrew Jul 6 '15 at 18:52
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    This is misleading: the question is "can they be made to do it," not "can they decide it's needed." – cpast Jul 6 '15 at 18:54
  • @cpast As far as that goes, the SCOTUS can be "made" to rule on only a few things. I think that this answer seems to hit more at the heart of the question as written. Otherwise it is just a standing question, – Andrew Jul 6 '15 at 18:59
  • @Andrew I think it is that question, though; the asker emphasized that the courts refused to consider the issue when Lavabit raised it, and is asking if they can be made to consider it (which I read as "they can't decline to consider it") – cpast Jul 6 '15 at 19:01
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    @cpast I think we both agree on the correctness of both of our answers... it's just a disagreement about whether we're getting to what the question actually is asking. – user248 Jul 6 '15 at 19:32
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Federal courts are not permitted to issue abstract opinions divorced from an actual legal dispute between two parties; the Constitution restricts federal judicial power to actual cases and controversies. Courts can decide broad questions when it is necessary or useful to decide an actual case, but only when it's necessary (anything not necessary for the holding in that case is not binding precedent). It is not possible to force a federal court to issue a broader opinion than needed to resolve the actual issue before the court; you can ask them to clarify the law for the sake of precedent, but can't make them do it.

  • but.who decides what is necessary or useful? federal judges have considerable autonomy. the worst that is likely to happen if they issue a bizarre opinion is that a higher court will reverse it. the worst that could happen is that the congress will impeach and convict them but that rarely happens. – emory Jul 23 '15 at 13:40
  • @emory Judges do. The point of this answer is you can't force the judge to rule on a particular argument, because the judge decides if the issue is something the court will address or not. – cpast Jul 23 '15 at 14:02

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