The Fourth Amendment to the U.S. Constitution requires law enforcement officials to obtain a warrant prior to searching an individual’s personal effects or seizing their property. The warrant must demonstrate probable cause to believe that the search or seizure will reveal evidence related to a criminal investigation. These protections apply both to a person’s physical effects, such as documents and other materials, and to their “electronically stored information” (ESI). The extent to which a warrant may allow law enforcement to search and seize ESI is still a matter of dispute. A federal judge issued a ruling in late 2016 that seems to grant broad powers to law enforcement to seize ESI. The court found that the Federal Rules of Criminal Procedure and the Stored Communications Act (SCA) required a provider of email services to turn over the entire contents of several email accounts. In re Microsoft Corp., No. 2:16-mj-08036, mem. order (D. Kan., Sep. 28, 2016).
At the time the Fourth Amendment was drafted and ratified in the 18th century, people’s personal effects mostly consisted of materials that they kept on their person or in their residence. This remained true for nearly two centuries, until computers became widespread, and people began using third-party internet service providers (ISPs) to communicate. Private communications, which enjoy the Fourth Amendment’s protection from warrantless searches and seizures, may now reside on servers maintained by ISPs, with the owner of those communications having the right to access them.
The third-party doctrine, which holds that information voluntarily disclosed to others is no longer protected by the Fourth Amendment, would seem to make communications stored by ISPs accessible to law enforcement—this seems to fit the letter of that particular doctrine, if not its spirit. The SCA attempts to reconcile the use of third-party ISPs with the Fourth Amendment, establishing requirements for warrants issued to ISPs. 18 U.S.C. § 2703. Procedural rules also address warrants for ESI. See Fed. R. Crim. P. 41(e)(2)(B).
The federal government applied for a warrant under the SCA in early 2016, seeking access to three accounts hosted by Microsoft’s Hotmail service. A magistrate denied the application, finding that the government’s request to search the contents of the email accounts in their entirety exceeded its authority. The court noted that the government had only established probable cause to search some of the ESI in the accounts, and had conceded that it was only concerned with ESI after a certain date.
After the denial by the magistrate, the government submitted an amended application and affidavit, and requested a review by a district judge. This resulted in a reversal of the magistrate’s ruling and issuance of the warrant. The district judge held that Rule 41(e)(2)(B) establishes a “two-step procedure” with regard to ESI, which involves first seizing or copying ESI, and then examining it “consistent with the warrant.” Microsoft, mem. order at 10. The SCA requires ISPs to turn over ESI when presented with a warrant that complies with Rule 41. Applying this interpretation, the court held that the warrant could cover the entire contents of an email account. This ruling suggests that the SCA, enacted in the 1980’s, does not reflect the extent of people’s reliance on ISPs in 2016 and 2017.
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
Board-certified criminal defense attorney Michael J. Brown has advocated for the rights of defendants in West Texas state and federal courts for more than twenty years. Please contact us today online or at (432) 687-5157 to schedule a confidential consultation to discuss your case.
More Blog Posts:
Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014
Microsoft Fights Search Warrant Seeking Email Data Stored on Overseas Servers, Texas Criminal Lawyer Blog, October 9, 2014
Court Rulings Affirm Fourth Amendment Rights Against Warrantless Cell Phone Searches, Texas Criminal Lawyer Blog, May 14, 2014.