I’m as happy as anyone to see Fourth Amendment violations redressed, but a recent decision of Judge Block of EDNY, reported
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David,
I think the short answer is that the holder’s interest in a copy of the contents of an email account is privacy, not possession, therefore search, not seizure. The holder has whatever ability to access the email that existed before. Put another way, I understand that courts regularly uphold mirroring hard drives and searching the mirror, when the probable cause exists only for certain files that are somewhere on the drive. This is because the level of interference with possession is different than if a house had been seized to look for something in it. Also, it is possible to take a disk away and search it carefully and safely off site, something that is simply not possible with a house.
Jack
Posted by: Jack | Nov 4, 2009 12:53:55 AM
Well, I don’t understand why they had to seize the whole account on CD. Couldn’t they just look at the e-mails in the account, like searching through a house for a gun, and take only the e-mails that revealed a crime, like seizing only the gun?
Getting the stuff on CD seems like a convenience to the FBI, not a necessity. Sure, they had to search through all the e-mails, but searching is different than seizure.
Here, they didn’t just search the whole house, they seized the whole house and took it with them.
And certainly the FBI can’t seize someone’s house and “put it in an evidence bag,” so to speak, simply because it may contain a gun that is evidence. The house itself is not, if you are just looking for a gun, and seizing the whole account simply wasn’t necessary, but only convenient.
Imagine if the FBI were looking for a letter, that was evidence of a crime, in someone’s house and rather than going through the mail at that house and pulling out the one letter evidencing a crime simply seized the entire stack of mail and took it with them.
Posted by: David Gipson | Nov 2, 2009 3:50:06 PM
Minor correction–Judge Block is EDNY.
Posted by: D | Oct 27, 2009 12:22:04 PM
I offer an analysis of the case here.
Posted by: Orin Kerr | Oct 27, 2009 3:27:45 AM