E-mail and Warrant Requirements
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Is There a Difference Between Searching For a Letter Versus an Email?
In general, search warrants are orders signed by a judge that gives police officers the right to search a specific space for specific objects or materials. Judges will only sign the warrant if the request has specific information about the object(s) and its location and the police can show probable cause.
If, for example, the police wanted to search your apartment for a specific letter, they would need to show with facts and circumstances that the letter was evidence involved in a crime that either took place or will take place. Only then would a judge be able to grant the police a warrant to search your apartment for the letter.
E-mail searches work differently. Since most people use online service providers like Google Gmail, the police usually contact the internet service provider (ISP) who provides you an email account.
When Do the Police Need a Warrant to Search Emails?
The age of the email and their location determines whether the police will need a warrant. Currently, the police need a warrant for emails in the following circumstances:
- When an email is in transit
- Emails that are stored on a home computer only
- Emails stored in a remote location (such as a work server or ISP server) that are unopened and that are 180 days old or newer
- Emails that are in remote storage and opened or older than 180 days do not require a warrant. Instead, the police only need an administrative subpoena.
What is the Difference Between a Warrant and An Administrative Subpoena?
Administrative subpoenas are issued by federal agencies without any approval by a judge. Subpoenas do not require probable cause.
Administrative subpoenas are often used by federal agencies that are categorized as civil agencies. For example, the Securities and Exchange Commission (SEC) uses administrative subpoenas because they do not have the authority to obtain warrants.
What Laws Govern Email Searches?
The base guideline for email searches comes from federal law, specifically the Electronic Communications Act of 1986 (ECPA). Currently, a bipartisan bill called the Email Privacy Act is being debated in Congress. The Email Privacy Act would be an amendment that would update the ECPA by requiring warrants for all email searches.
States can heighten searches to require warrants in more circumstances. Only two states so far require warrants for email searches. Texas was one of the first by enacting a law in 2013 that requires a warrant for all e-mail searches. More recently, California’s Electronic Communications Privacy Act (CalECPA) requires a warrant for all electronic personal information, including emails.
Do I Need a Lawyer If I Feel That a Search of My Emails Was Illegal?
Yes. A qualified criminal defense attorney will be able to determine whether the police followed the proper procedure in conducting an email search. The attorney will also be able to determine whether your constitutional rights were violated. If your attorney successfully argues that your rights were violated, evidence uncovered during the unlawful search will be deemed inadmissible.
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Last Modified: 01-13-2016 02:40 PM PST
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