At the end of September, the U.S. the U.S. District Court for the District of Kansas held that a warrant for an entire email mailbox did not violate the parameters of the Fourth Amendment in In re Microsoft Corp., 2016 BL 320715, D. Kan., No. 16-MJ-8036, 9/28/16.  Here, the court looked to balance an individual’s right to privacy and the government’s capability to effectively prosecute suspected criminals.

In March, the government submitted an Application and Affidavit under the Stored Communications Act in support of a Search Warrant to Magistrate Judge David J. Waxse to search three email accounts hosted by Microsoft; the accounts were suspected to contain information pointing to the furtherance of criminal activity.  In his analysis, Judge Waxse recognized that individuals  have a right to privacy in their emails.  Judge Waxse subsequently analyzed the Fourth Amendment’s aim to prevent general searches along with Rule 41 of the Federal Rules of Criminal Procedure and decided that the government’s warrant did not meet the particularity standard set forth by the Fourth Amendment, and that the descriptions of place to be searched and the things to be seized by the government were also not described with sufficient particularity.  Accordingly, Judge Waxse denied the warrant and provided suggestions to the government to bring the warrant within the parameters of the Fourth Amendment.

The government subsequently submitted an amended affidavit and application and asked the court to hold it compliant with the Fourth Amendment and grant the search warrant.  Judge Carlos Murguia looked to the “search first, seize second” rule set forth by Criminal Rule 41(e)(2)(b) addressing warrants seeking ESI.   During his analysis, he examined the committee notes to the rule and concluded that email data fell under the “umbrella” of ESI  permitted to be obtained by the government under the Stored Communications Act.  Further evaluation of the committee note showed that the particularity analysis set forth by the Fourth Amendment should be evaluated on a case-by-case basis.  Accordingly, Judge Murguia analyzed the “current state of the law” and determined that the warrant was sufficiently particular under the Fourth Amendment.

This case further brings into question the efficacy of the Stored Communications Act as applied to 2016 technology.  As a reminder, this is not the first time Microsoft has had issues with the Stored Communications Act.  The notion that the “current state of the law” allows the collection of an entire personal email box seems to violate basic privacy principles.