The Fourth Amendment Prohibits Carte Blanche Review of Email Accounts by the Government
Those office employees who have rolled the dice and sent emails clearly not suitable for work would be glad to know that their email accounts are protected from government intrusion by the Fourth Amendment. United States v. Warshak, 631 F.3d 266, 282-88 (6th Cir. 2010). The government must obtain a search warrant to search a person’s emails – just as it would in order to open letters located inside a person’s mailbox. Every search warrant must particularly describe (1) the place to be searched, and (2) the persons or things (or in some cases the electronic communications) to be seized. This is easy when a warrant seeks traditional mail. The place to be searched is the suspect’s mailbox, and the things to be seized are, in most cases, the letters addressed to the suspect. However, in the digital realm, whether a description of a place to be searched is sufficiently particular is a complicated question. Thus, a recent decision from the District of Kansas concerning the particularity requirements to search warrants seeking email communications stored in accounts provided by third-parties such as Google is significant for both electronic discovery purposes and Fourth Amendment law. In re Search Warrants for Info. Associated with Target Email Accounts, 2013 U.S. Dist. LEXIS 123129 (D. Kan. August 27, 2013).
In 2013, the government alleged that individuals (the “Targets”) purchased stolen computer equipment that they knew to be stolen and transported the equipment from Kansas to New Jersey. As part of the government’s investigation, it requested that the court issue search warrants to obtain the Targets’ electronic communications from five providers of electronic communication services, Google, Yahoo!, Verizon, GoDaddy, and Skype (collectively, the “Providers”). The government sought the contents of all the Targets’ emails, instant messages and chat logs, and would need the Providers’ assistance to obtain this information.
In previous cases involving search warrants served on electronic communications service providers, courts have issued broad warrants for the government. See United States v. Taylor, 764 F.Supp.2d 230 (D. Me. 2011); United States v. Bickle, 2011 U.S. Dist. LEXIS 94921 (D. Nev., July 21, 2011); United States v. Bowen, 689 F.Supp.2d 675 (S.D.N.Y. 2010). However, in this case, rather than simply rubber stamp the warrant applications, the court denied the government’s warrant applications because they violated the Fourth Amendment’s particularity requirement.
Specifically, the court found that the government’s five warrants failed to set any limits on the email communications and information that the Providers were to disclose to the government. The warrants instead required each Provider to disclose all email communications in their entirety and all information about the Targets’ accounts without restriction. This included deleted communications, and other information stored by the Targets, including address books, contract lists, calendar data, pictures and files. Indeed, the warrants failed to set any limits on the universe of information to be disclosed to and searched by the government. The court found the breadth of information sought by the search warrants for the Targets’ accounts – including the content of every email sent to or from the accounts – was best analogized to a warrant asking the post office to provide copies of all mail ever sent by or delivered to a certain address so that the government could open and read all the mail to find out whether it constituted fruits, evidence or instrumentality of a crime. In re Search Warrants, at *27-28. The Fourth Amendment would not allow such a warrant for information in paper form and, therefore, the court would not allow such a warrant for information stored in electronic form.
The court was also troubled by the government’s failure to limit the universe of the electronic communications and information to be turned over to the specific crimes being investigated. A warrant is overly broad if it does not contain sufficiently particularized language that creates a nexus between the suspected crime and the things to be seized. United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000). Here, the government failed to create a nexus between the suspected crime of receiving stolen property and the communications and related account information to be obtained and searched. “The warrants as currently proposed g[ave] the government virtual carte blanche to review the content of all electronic communications associated with the accounts and fail[e] to adequately limit the discretion of the government-authorized agents executing the warrants.” In re Search Warrants, at *29.
Additionally, the warrants did not identify any sorting or filtering procedures for electronic communications and information that was not relevant and did not fall within the scope of the government’s probable cause statement. The warrants also failed to identify a procedure for filtering emails containing attorney-client privileged information. While not endorsing or suggesting any particular safeguard, the court, citing the Sedona Conference, noted that possible options included asking the Providers to provide specific limited information such as emails containing certain key words or emails sent to/from certain recipients, or setting up filter groups to review the information for relevance and privilege.
In sum, this case provides guidance on the particularity requirements that should be applied to search warrants seeking email communications stored in an account provided by an electronic communications service provider. Criminal defense attorneys – who advocate for the most expansive view of the Bill of Rights – should welcome the court’s denial of the government’s search warrant applications. It is a victory against general warrants in the realm of electronic information. For the government, this decision underscores the importance of the particularity and breadth standards imposed by the Fourth Amendment, which is especially important today when fruits and evidence of illegal acts are increasingly found in electronic form.