Microsoft Mail and the 4th Amendment: Do Any of Us Seriously Think We Have a Right Not to Have Email Seized as Possible Evidence?


Hon. James C. Francis IV, United States Magistrate Judge in the Southern District of New York, has long been known as one of the most knowledgeable and thoughtful jurists in dealing with the discovery of electronic information in federal litigation. As an eDiscovery judge, Judge Francis has shared his valuable insight in both case decisions and many continuing legal education seminars. His recent Memorandum and Order In The Matter Of A Warrant To Search A Certain E-Mail Account Controlled And Maintained By Microsoft Corporation (U.S.D.C., 13 Mag. 2814) (April 25, 2014) has received a lot of blog activity and legal press. Many are concerned that it expresses a dilution of the Fourth Amendment or otherwise denigrates our privacy rights. It is not clear that all of the commenters have read the full opinion.

This is not Lavabit being forced to decide whether to comply with a questionable request or to go out of business. This is not the NSA holding the metadata of millions of individuals’ personal communications on the dubious needs of national security.

This is a warrant for search in a criminal matter, issued by a federal judge, in an open forum, where the warrant can be challenged and where the receiving party can move to quash.

“That warrant authorizes the search and seizure of information associated with a specified web-based e-mail account that is 'stored at premises owned, maintained, controlled, operated by Microsoft Corporation, a company headquartered at One Microsoft Way, Redmond, WA.'

In order to obtain such an order, the Government must provide the court with 'specific and articulable facts showing that there are reasonable grounds to believe that the content of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. 2703(d).'"

This is the classic test for a valid search warrant. Assuming these conditions are met, we go on to the issue of extraterritoriality. Talking about the Electronic Communications Privacy Act, and the Stored Communications Act within it, Judge Francis goes on to say:

“In particular, the SCA authorizes the Government to procure a warrant requiring a provider of electronic communication service to disclose e-mail content in the provider’s electronic storage. Although section 2703(a) uses the term 'warrant' and refers to the use of warrant procedures, the resulting order is not a conventional warrant; rather, the order is a hybrid: part search warrant and part subpoena. It is obtained like a search warrant when an application is made to a neutral magistrate who issues the order only upon a showing of probable cause. On the other hand, it is executed like a subpoena in that it is served on the ISP in possession of the information and does not involve government agents entering the premises of the ISP to search its servers and seize the e-mail account in question.”

"It has long been the law that a subpoena requires the recipient to produce information in its possession, custody, or control regardless of the location of that information….The test for production of documents is control, not location.”

Do any of us seriously think that we have a legal right not to have our email seized as possible evidence of a crime, when our ISP is subject to US jurisdiction, just because the email is stored on an offshore server?


[Chuck Kellner is a veteran litigation support professional and leading eDiscovery strategist. He is senior vice president of discovery engineering at D4.]

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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