In the 1930s, Elliot Ness and his “untouchables” made history battling Al Capone and the mob. Press accounts told of Ness and his team racing through city streets, forcing their way past oversized thugs, and booming through reinforced warehouse doors behind which were concealed containers chock full of assorted high value contraband. Today’s searches for digital evidence are a tad less dramatic, though immensely more intricate and complicated. The electronic vaults storing terabytes of digital evidence are generally not guarded by accessories to the crime, but more than likely, corporate multinational digital giants who warehouse the electronic data of others, among other services, for monthly fees. The methodology to obtain such information and potential critical evidence through some form of legal process has come to the forefront. Third-party entities storing treasure troves of information have been on the front line in litigation concerning the legality of disclosure of such information, and email evidence as expected has been at the center of the controversy. Recurring questions include what legal standards apply to the disclosure of customer emails stored by Internet Service Providers (ISPs)? Does the Fourth Amendment’s particularity command prevent the seizure of a customer’s entire email account? These and related questions will be addressed in this article.
Email Searches
Emails are the universal conversational medium of today as much as the hand written letter and the telephone call were in the past. The Fourth Amendment protects these electronic communications providing:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, ant the person or things to be seized.1
