Does a Search Warrant for the Contents of All Emails in a Subscriber’s Account Violate the Fourth Amendment?

Published On September 11, 2013 | By Dan Sachs | Fourth Amendment, Privacy

KANSAS FLAGA federal magistrate in Kansas has held that a search warrant seeking the contents of all of a subscriber’s communications held by a provider of electronic communications services, without limiting the scope of the communications to be obtained or reviewed, violates the particularity requirement of the Fourth Amendment.

The case, In the Matter of Applications for Search Warrants for Info. Associated with Target Email Accounts/Skype Accounts,  (D. Kan. Aug. 27, 2013), involved a federal investigation of interstate transportation of stolen property.  Seeking evidence of the alleged crimes, the United States applied for search warrants to compel five providers of electronic communications services to turn over the entirety of their records regarding the suspects, including the contents of all communications.

The magistrate judge refused to issue the search warrants, stating that “while nothing in Section 2703 [of the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712] . . . may specifically preclude the government from requesting the full content of electronic communications in a specific email account, the Fourth Amendment may do so and does here.”

The magistrate adopted the rationale of United States v. Warshak, 631 F.3d 266, 282-22 (6th Cir. 2010), in which the Sixth Circuit held that an individual has a reasonable expectation of privacy in email stored with, sent to, or received through an electronic communications service provider.  As such, the magistrate considered whether the warrant application met the particularity requirement of the Fourth Amendment.

The magistrate noted that, because warrant applications for computer searches are filed under seal, the case law on particularity for computer searches is sparse.  The magistrate also agreed with prior cases suggesting that the Fourth Amendment does not require the government to delegate a pre-screening function to providers to ascertain which communications are relevant before producing them.  However, the warrants sought by the government in the case were too broad because they failed to set any limits on the scope of the communications to be disclosed and set no limits, such as sorting or filtering procedures, on the government’s review of emails produced.

In reaching this decision, the magistrate suggested that a search of the content of all electronic communications is more akin to a search of “intermingled documents”—a context in which the Tenth Circuit has required law enforcement to specify in the warrant the types of documents being sought—than to a search of a computer—where the Tenth Circuit has not required a particularized search strategy.

The magistrate was wary of being perceived as “endorsing or suggesting any particular safeguard,” but mentioned “possible options” including having the providers apply search protocols, appointing a special master to hire an independent vendor to do so, or setting up a walled-off “filter group” within the government to do so—leaving it to the government to decide which course to take.

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About The Author

Dan Sachs, ZwillGen’s inaugural Fellow, assists ZwillGen attorneys on a broad range of matters, including litigation, investigations, product counseling, regulatory compliance, and policy. Prior to joining the firm, Dan worked at Facebook, where he assisted the Chief Privacy Officer for Policy in responding to federal, state, and international policy developments, engaging with regulators and stakeholders, and advising business units on privacy issues. During law school, Dan was a member of the George Washington Law Review and served as a research assistant to Professor Jeffrey Rosen, focusing on U.S. and international consumer privacy and surveillance issues. He was a legal intern with ZwillGen in the summer of 2012. Dan also worked as a legal intern with the U.S. Attorney’s Office for the District of Columbia.

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