No notice to subscriber required when officers seize stored email from ISP
The usual protocol when agents execute a search warrant at an office or home is to leave a copy of the warrant with the person in control of the premises, often but not necessarily the owner. Rule 41(f)(1)(C) requires it. But what kind of notice is required when agents execute a search warrant to seized stored emails from a subject's internet service provider (ISP), such as Google or Hotmail or Verizon? Answer: none. to the subscriber.
A District of Oregon judge recently considered this question in a case involving a warrant served under the terms of the Stored Communications Act, 18 U.S.C. § 2703(a), which requires a search warrant -- as opposed to a mere subpoena -- if law enforcement officers wish to obtain e-mails stored for 180 days or less. In re Application of United States for Search Warrant, 2009 WL 3416240 (D. Ore., June 23, 2009). The magistrate judge presented with the government's application for a warrant granted the warrant but rejected the Government' s arguments that supplying the warrant to the ISP was sufficient notice under the SCA and that Rule 41's notice procedure was not applicable; the Government was initially ordered to provide notice of the seizure to the individual subscriber.
On an appeal by the Government, the district judge reversed. While the opinion contains a useful summary of search procedures under the involved provisions of the SCA and the interplay of the SCA with Rule 41, the rationale of decision was rather straightforward. The third party electronic context is no different than other third party contexts, such as when agents seize a package in the control of Federal Express. In the latter instance, a copy of the search warrant is permissibly left only with Fed Ex and there is no need to inform the sender or recipient of the package of its seizure. ISP's are analogous to Fed Ex, and notice to the individual subscriber to the ISP is unnecessary.
