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In pursuing sex predators — and more recently, suspected terrorists — law enforcement routinely relies on search warrants to harvest e-mail evidence from Yahoo and Hotmail Web servers. So a Minnesota federal judge’s decision to throw out e-mail evidence gathered that way in a child pornography case has angered prosecutors and the Silicon Valley firms that execute the warrants. Minneapolis-based U.S. District Court Judge Paul Magnuson ruled late last year that an investigating officer violated the Fourth Amendment when she simply faxed a search warrant to Yahoo Inc. and didn’t personally oversee the search by Yahoo employees. Now, prosecutors, Yahoo and Internet trade groups are trying to persuade the 8th U.S. Circuit Court of Appeals to overturn the trial court’s decision. “We are definitely interested in what happens in that case because of the potential ramifications in that case and any cases that were to follow,” said San Jose-based Assistant U.S. Attorney Ross Nadel. Prosecutors and attorneys for Internet groups argue that it would be intrusive and pointless for officers to look over the shoulders of trained employees gathering data. Requiring a law enforcement presence also could unravel some of the benefits of the recently enacted U.S.A. Patriot Act, they say, and create headaches for federal law enforcement in California’s Northern District. A law enforcement presence could actually jeopardize Fourth Amendment rights, they argue, because police officers would be privy to more information than outlined in the warrant. “Our concern is the burden it places on us,” said Jonathan Band, the Washington, D.C.-based Morrison & Foerster partner representing Yahoo and several other amici in the appeal to the 8th Circuit. “What you try to do, given the volume of the requests, is you try to search in the most efficient way possible. If you have a police officer physically present, you are going to disrupt the whole schedule.” If the ruling stands on appeal, it could jeopardize other ongoing cases involving searches carried out in similar fashion and potentially require federal law enforcement agents in California’s Northern District to hand deliver and oversee the execution of search warrants from jurisdictions throughout the nation. But the Minneapolis defense attorney who won the ruling said it’s crucial to ensure constitutional safeguards at a time when the government and law enforcement are sifting through tens of thousands of personal e-mail messages. THE MINNESOTA CASE U.S. v. Dale Bach, 01-2221, began when a frightened mother went to police after discovering on the family computer an alarming log of Internet chats between her underage son and another online user. Police traced the incoming messages to Dale Bach, a 26-year-old Minneapolis resident and registered sex offender. Police sent a letter to Yahoo asking the company to preserve all incoming and outgoing messages from Bach’s Yahoo account, and faxed a search warrant for them three months later. Yahoo complied, sending police copies of messages that included child pornography. With that evidence, police obtained a search warrant to search Bach’s house and computer. In August, Bach was indicted for the possession, transmission, receipt and manufacture of child pornography. Bach’s defense lawyer, William Orth, argued that requiring law enforcement to carry out searches will make it less likely that prosecutors will conduct a “sneak attack” that search warrants facilitate. “Subpoenas or court orders are authorized ways that do not require the physical presence of the officer. The reason law enforcement chooses the search warrant is they want a sneak attack. They don’t want to give notice,” explained Orth, a Minneapolis-based solo practitioner. “If you use a search warrant as a shortcut, you have to play by search warrant rules.” Judge Magnuson agreed, saying the Fourth Amendment requires police to be on hand for searches, as outlined in 18 U.S.C. 3105. Magnuson reasoned that only police officers can lawfully conduct a search, and noted that Congress immunized Internet providers that conduct searches at the request of law enforcement — meaning they have no incentive to strictly adhere to the scope of the warrant. “In fact, an Internet service provider is immune from suit so long as it is providing assistance in accordance with the terms of the warrant,” Magnuson wrote. “Without an officer present, this conditional grant of immunity may become an irrefutable protection for Internet service providers to conduct searches that traverse the clearly defined limits of a warrant.” Employees at Yahoo and elsewhere that now conduct the searches “are kids in a candy store,” Orth said. “We can’t sue them for making a mistake.” Bridgid Dowdal, the Assistant U.S. Attorney in Minneapolis handling Bach’s case, declined to comment. But in her brief to the 8th Circuit, she argued that the Fourth Amendment doesn’t require officers to oversee the technical assistance rendered by e-mail providers. Yahoo and its allies have been quick to see a “significant burden” imposed by Magnuson’s ruling, a burden they say wouldn’t be offset by a “meaningful increase in protection of the Fourth Amendment.” But Band’s brief — on behalf of Yahoo, NetCoalition, the Computer & Communications Industry Association and the U.S. Internet Service Provider Association — doesn’t provide any hard numbers on the burden. A Yahoo representative declined to discuss the volume of search warrants it receives, and representatives of the other groups said they didn’t have any specific data. Instead, Band wrote that, “At any time conceivably dozens of law enforcement officers would be on the premises of any given service provider, waiting for its employees to retrieve the information specified in warrants served. This law enforcement presence would be disruptive and intimidating to the service provider’s employees.” Orth said the absence of detail in Bach’s case proves his point. “Yahoo still cannot tell us who at Yahoo executed the search warrant [in Bach's case], which is part of the problem,” Orth said. “To this day, Yahoo has not come forward with who and what program participated in the execution of the search.” But Markham Erickson, senior counsel with NetCoalition, a Washington, D.C.-based trade group that signed onto Band’s amicus brief, said Internet warrants are straightforward, and searches are conducted the way legislators intended. “It’s a system that works well,” Erickson said. “The search is for a person and a time frame. There is no gray area to be parsed out by the searcher.” THE PATRIOT ACT One big worry for Nadel, the San Jose, Calif., federal prosecutor, is that the Minnesota decision, if upheld, could cancel out the benefits of the U.S.A. Patriot Act. Until the Patriot Act was passed in the wake of Sept. 11, search warrants had to be issued by a magistrate judge in the same district as the property to be searched. With so much of the Internet’s traffic stored on servers in Santa Clara County, most e-mail investigations were funneled through San Jose. “For that reason,” Nadel said, “we were required to work on, process and present to the magistrate in San Jose many search warrant applications to obtain the content of e-mail related to investigations in other parts of the country and all over the world.” The Patriot Act made it easier for federal prosecutors to collect evidence by allowing any court with jurisdiction over the offense to issue the warrant. If the 8th Circuit upholds the decision, Nadel said, it could re-create the logjam by forcing local law enforcement to oversee searches in and around San Jose. But help may be on the way. An amendment to a cyber security bill pending in Congress could make the outcome of the 8th Circuit case moot. Jason Mahler, the general counsel of the Computer & Communications Industry Association, said the proposed amendment would clarify the statutory requirement that law enforcement be present for searches, making it permissible for Web hosts to execute the warrants on their own. One of the amendment’s co-sponsors is Rep. Zoe Lofgren, D-Santa Clara. “Most of the people and staff on the Hill we have talked to view [Magnuson's decision] as contrary to the intent of the [Patriot] Act,” Mahler said. “If they can spell it out, we wouldn’t need it to be overturned by the court.”

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