When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-mail Surveillance

• Publication year: 2021

90 Nebraska L. Rev. 971. When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-Mail Surveillance

When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-Mail Surveillance

Nicole Friess(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 972

II. Extending the Fourth Amendment-From Telephones to E-Mail ............................................. 976

III. Scholarly and Statutory Responses to Stored E-Mail Surveillance .......................................... 981
A. Overemphasizing the Probable Cause Warrant ..... 982
B. Warrantless Surveillance and the Unconstitutionality of the SCA .................... 984

IV. Stored E-Mail Particularity in Practice ................ 986
A. The Place to be Searched .......................... 987
B. The Things to be Seized ........................... 990
1. Principles of Describing the Things to be Seized ......................................... 991
2. Particularity Parameters ....................... 995
i. Specifying Identity ......................... 997
ii. Establishing a Time Frame ................ 999
iii. Specifying the Offense ..................... 1000
3. Confronting the Plain Text Argument .......... 1003
C. Margin of Flexibility .............................. 1004
1. Generic Descriptions When Information is Unavailable ................................... 1005
2. Complex Criminality ........................... 1008

V. Practicalities of Particularity .......................... 1010

VI. Conclusion ............................................ 1016

1

I. INTRODUCTION

Perhaps nothing is more akin to our innermost secrets than the content of our private conversations.(fn1) Conversational content, though, is no longer fleeting-millions of Americans use e-mail as a central medium of communication, their conversations preserved on the servers of internet service providers (ISPs).(fn2) Consider the contents of a typical e-mail account: It often contains e-mails to family, friends, and lovers with pictures, receipts, and appointments, and its contents may date back days or possibly even years. Also consider how invasive it would be if a police officer had unfettered access to that e-mail account and rifled through each and every stored e-mail and file.

The framers of our Constitution "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations" and "conferred, as against the government, the right to be let alone."(fn3) The laws that govern government access to our private lives impose checks and balances on the power of the police to search and seize private information, protecting us from invasions of privacy unless an intrusion is justified by factual circumstance. When police investigate a crime and want to search for evidence, they must-in order to first obtain a search warrant-convince a magistrate judge that the facts known establish there is probable cause to believe a search will uncover evidence of wrongdoing.(fn4) However, a warrant based upon probable cause is not the only thing required for a search and seizure to be considered constitutional-the Fourth Amendment categorically prohibits the issuance of warrants except those particularly describing both the place to be searched and the things to be seized.(fn5) According to the Supreme Court:

The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the [f]ramers intended to prohibit.(fn6)

2

However, the extent to which the Fourth Amendment protects the content of stored e-mail communications is an open question-a new frontier in Fourth Amendment jurisprudence that has been little ex-plored.(fn7) Many have addressed the issues surrounding probable cause and stored e-mail surveillance,(fn8) yet neither Congress nor courts or scholars have addressed how the particularity requirement should apply in this context. Simply stated, how warrants authorizing stored email surveillance describe with particularity both the place to be searched and the things to be seized has been greatly overlooked.

A central purpose served by the particularity requirement is the prevention of "general, exploratory rummaging in a person's belong-ings."(fn9) The potential for such boundless rummaging is significantly magnified in the internet age, as one's private, digital conversations so infrequently remain within the periphery of one's own control.(fn10) Congress has codified procedural protections derived from the particularity requirement(fn11) that protect privacy and curtail abuse for some forms of electronic surveillance, especially when such surveillance divulges a wide range of private information over a significant period of

3

time.(fn12) However, the statutory laws governing the surveillance of stored e-mails and files do not contain these same protections.

The privacy invasions that result when particularity is lacking in the context of stored e-mails and files are best demonstrated by example. Imagine that Bob is the sole owner of a company that markets and sells its products through telephone orders, online sites, and retail stores. Bob's customers, however, are angry. They file a criminal complaint against Bob and his company, claiming the products they purchased do not work as advertised and their money-back guarantees have not been honored. The government then starts investigating Bob and his company in connection with the marketing and sale of the products, trying to find violations of federal law, such as mail fraud or money laundering.

Bob has an e-mail account through which both his professional and personal e-mails are stored on a server, owned and operated by his ISP. The government wants to know if these e-mails contain leads or evidence, so it obtains a court order under the Stored Communications Act (SCA)(fn13) to compel the ISP to divulge the e-mails. Pursuant to the SCA, the court order grants government access to Bob's e-mail subscriber information and the contents(fn14) of all Bob's e-mails that have been in storage for more than 180 days.(fn15) The ISP divulges the emails to the government-every e-mail more than 180 days old from the time Bob first opened his e-mail account-except e-mails that Bob did not access, view, or download. The government examines thousands of these e-mails, many of which are deeply personal and completely unrelated to Bob's business, having no relevance to the government's investigation. As permitted under the SCA, moreover, the ISP is forbidden from notifying Bob the government has gained access to his e-mails.(fn16)

Based on the information provided by the complaining customers, the government knows specific information concerning when and how

4

the alleged federal offenses occurred. Yet the government never establishes probable cause to believe the search of Bob's stored e-mails will yield evidence of a crime, and it never obtains a warrant or attempts to limit its search to e-mails pertaining concerning only Bob's business. Nor does it limit its search and seizure to e-mails sent or received during the time period when the alleged federal offenses occurred. The government does not do any of these things, even though it could, because the SCA does not require it to do so.(fn17) Is it possible the government can search and seize thousands of Bob's personal, private e-mails which have no relevance to its investigation? Yes, it is possible. In fact, the scenario just described is similar to what happened to Steven Warshak in 2005.(fn18) Such government surveillance unreasonably intrudes into our online personal privacy and dignity. This stems from the failure of the courts to, until recently, extend the Fourth Amendment's protections to e-mail communications.(fn19)

To date, most of the discussion regarding how the Constitution protects privacy interests in stored e-mail has focused on whether a warrant is required to conduct stored e-mail surveillance and whether probable cause is the appropriate justification standard .(fn20) Little to no attention has been directed toward how the particularity requirement of the Fourth Amendment applies to searches and seizures of stored e-mail communications.(fn21) Only Susan Freiwald has argued that procedural particularity should be required in order for government acquisitions of stored e-mails to pass constitutional muster, yet she did not enumerate specific standards of particularity.(fn22) This Article addresses how the particularity requirement applies to stored email surveillance and sets forth standards to evaluate the particularity of search warrants for stored e-mail communications.

This Article proceeds in four parts. Part II explains why and how procedural protections derived from the particularity requirement have been codified by Congress and imposed by the courts in order to limit certain electronic-surveillance techniques. Part III describes how probable cause defines which stored e-mails the government may

5

search and seize and the reason why scholarship has overemphasized probable cause in the context of stored e-mail surveillance. Then...