In the Matter of the Application of the United States of America for a Search Warrant

Citation: In the Matter of the Application of the United States of America for a Search Warrant for Contents of Electronic Mail, 2009 WL 3416240 (D. Ore. June 23, 2009).

Factual Background
The United States requested two search warrants under the Stored Communications Act, for e-mails belonging to subscribers of Google and Webhost, Inc. The requests sought subscriber information, connection logs and data, and the contents of all electronic communications for the previous nine months. The warrants were issued based on a supporting affidavit that established probable cause that a crime had been committed and that the contents of the communications would contain evidence of those crimes.

In the application the government requested that the court seal the applications and warrants and argued that notice of seized mail to the e-mail subscribers was not required. The district court held that the receipt requirement of Rule 41(f)(1)(C) of the Federal Rules of Criminal Procedure does apply to warrants issued under the Stored Communications Act, and that providing a receipt to the ISP satisfies that requirement. In the instant case, however, no property was actually taken and therefore there was no requirement that a receipt be provided to the e-mail subscribers.

Rule 41(f)(1)(C) requires that an officer executing a search warrant “give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.” This rule can be satisfied by giving a copy of the warrant and a receipt for seized property to the owner of the property seized, from the owner of the premises where the property was seized, or by leaving copies where the property was seized.

Appellate Court Proceedings
The passage of the USA-PATRIOT Act amended the Stored Communications Act §2703(a), to allow a government entity to compel disclosure of electronic communications “pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.” The government argued that the language “using the procedures” means that the statute does not incorporate any substantive portions of the Federal Rules, or even any procedural elements after the warrant has been issued. In reviewing the plain language of the statute, as well as the legislative history of both the Patriot Act and the Electronic Communications Privacy Act, the court held that in fact only the procedural elements of the Rule had been incorporated into the Stored Communications Act but that all such elements had been incorporated. In the present case the warrant was served on Google and Webhost, the location where the electronic information was stored and seized. When property to be seized is in the possession of a third party, Rule 41(f)(1)(C) requires no more than what was already accomplished in this case, the issuance of a warrant on those third parties.

Additionally, according to the court no property had been “seized,” because as the Supreme Court has noted, “[a] ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Because of the nature of electronic property it can be accessed by multiple persons simultaneously from multiple locations. The activities of the government in the execution of its warrant did not interfere with the property owners’ interests.