Are Your Emails Safe?

From Federal Defense Attorney Ronald W. Chapman II

Government searches of email accounts and how to defend them?

Did you know?

The FBI created a honeypot-encrypted cell phone service and collected tens of thousands of private communications. It was called Operation Trojan Shield and you can learn all about it in the book.

Challenging Email Search Warrants Under the Stored Communications Act: A Practical Guide

Introduction

The Stored Communications Act (SCA) is a crucial component of the Electronic Communications Privacy Act of 1986, designed to safeguard the privacy of electronic communications stored by third-party service providers, such as Google. For attorneys and prospective clients confronting a government search, understanding how to effectively challenge such searches is essential. This article aims to provide practical advice on navigating the complexities of the SCA.

Understanding the SCA

The SCA primarily restricts service providers from disclosing the contents of electronic communications to government entities unless specific conditions are met. These conditions generally involve obtaining a search warrant based on probable cause. The process delineated by the SCA includes various mechanisms for access, such as warrants, court orders, or subpoenas, depending on the information sought.

Key Legal Decisions and Their Implications

1. Domestic Application of the SCA

• In re Search Content That Is Stored at Premises Controlled by Google: This case highlighted that Google must produce content stored outside the United States if it can be accessed from within the United States. The ruling emphasizes that the SCA’s applicability is linked more to the control and accessibility of the data by the service provider rather than the data’s physical location. Read the case here.

2. Extraterritorial Reach

• In re Microsoft Corp.: Initially, this case expanded the SCA’s reach by mandating Microsoft to produce emails stored in servers located in Ireland. The ruling was controversial and sparked significant legal debates about the SCA’s extraterritorial application. This case exemplifies the legal and practical challenges when data is stored abroad, especially concerning conflicts with foreign laws and the reliance on Mutual Legal Assistance Treaties (MLATs). Read the case here.

3. Challenging the Scope and Execution of Warrants

• In re Search of Info. Associated With One Email Account that is Stored at Premises Controlled by Google: This case delves into the complexities of challenging search warrants under the SCA, particularly around the execution and the rights of individuals to object to the searches before they are carried out. Read the case here.

Practical Strategies for Challenging SCA Searches

A. Challenge the Probable Cause

• Attorneys should scrutinize the warrant for any probable cause deficiencies. This includes examining whether the evidence sufficiently connects the accused to the alleged crimes and whether it justifies accessing the specific communications sought.

B. Assert Lack of Specificity and Overbreadth

• A warrant under the SCA must be specific and limited to relevant information. Challenges can be based on the argument that the warrant does not narrowly target information pertinent to the investigation and instead grants access to extensive data unrelated to the case.

C. Address Jurisdictional Issues

• If data is stored overseas, attorneys can argue the SCA does not apply or that the court lacks proper jurisdiction, especially in light of the principles set out in cases like In re Microsoft Corp.

D. Leverage International Law and Treaties

• Highlight conflicts with the laws of the country where the data is stored. Using international privacy laws and MLATs can strengthen the argument against the applicability of the SCA to data stored internationally.

Conclusion

The evolving jurisprudence of the Stored Communications Act reflects ongoing efforts to balance privacy interests with law enforcement needs in the realm of global electronic communication and data storage. For defense attorneys and their clients, staying abreast of these developments and understanding the legal avenues available for challenging searches is crucial for effectively protecting clients’ rights in the digital age.

For more detailed advice and representation, consider consulting a specialized criminal defense attorney with expertise in digital privacy laws.

Ronald W. Chapman II, a recognized expert in criminal defense, provides strategic advice on defending against government searches under the Stored Communications Act. He is dedicated to safeguarding the digital rights and privacy of clients across the United States.