Kansas magistrate adopts Warshak, strikes down warrant applications for not meeting particularity requirements

In In re Applications for Search Warrants, No. 12-MJ-8119-DJW (D. Kan. 2012), a magistrate judge adopted the Sixth Circuit's Warshak view that electronic communications are subject to a reasonable expectation of privacy and held that search warrants for such information should be sufficiently limited to the relevant crime(s) and should address limits for reviewing the data.

The government had applied for two search warrants to obtain electronic communications from Yahoo! and UnityFax. In the application, they alleged that the account holder had been spamming individuals in an attempt to defraud them.

In deciding whether the Fourth Amendment applies to electronic communications, the judge relied heavily on the Sixth Circuit's decision in Warshak (Kansas is in the Tenth Circuit).

The Court finds the rationale set forth in Warshak persuasive and therefore holds that an individual has a reasonable expectation of privacy in emails or faxes stored with, sent to, or received thorough an electronic communications service provider. Accordingly, the Fourth Amendment protections, including a warrant "particularly describing" the places to be searched and communications to be seized, apply to a search warrant seeking such communications.

But here, of course, the government was already seeking the communications by a search warrant (under
18 U.S.C. § 2701(b)(1)(A) & (c)(1)(A)), rather than a 2703(d) Order. The court found that the applications did not meet the particularity requirements of the Fourth Amendment.

First, the judge found that a warrant ordering disclosure of "all email or fax communications" was "too broad and too general." The requests must "limit the universe" to information related to "the specific crimes being investigated." Second, the applications "fail to set out any limits on the government's review of the potentially large amount of electronic communications."

The Court finds the breadth of the information sought by the government's search warrant for the either the fax or email account—including the content of every email or fax sent to or from the accounts—is best analogized to a warrant asking the post office to provide copies of all mail ever sent by or delivered to a certain address so that the government can open and read all the mail to find out whether it constitutes fruits, evidence or instrumentality of a crime. The Fourth Amendment would not allow such a warrant.

The judge's suggestions for alleviating these issues included limiting the search to keywords or communications between certain individuals or to appoint a special master or filter group to review the information.