Debate Forum 07/29

Forum Center: Federal judge claims a computer is the same as a file cabinet

By Alex Culpepper

Illustration: Jed Helmers

The protocol for searching through digital evidence with and without warrants has been tested in an increasing number of cases. In June, the Supreme Court ruled unanimously law enforcement cannot search cellphones without a warrant. That case involved two incidents in which police searched suspects’ cellphones after their arrests: In 2009, police stopped David Riley for having expired tags and a suspended license. Police also found guns in his car. Police then searched his smartphone on site and found evidence of activity linked to a shooting. His legal defense claimed the smartphone search was illegal under the Fourth Amendment because it was performed without a warrant. The court did not buy it. Riley was eventually convicted of attempted murder. In 2007, Boston police confiscated Brima Wurie’s phone during an arrest and looked up the number of a caller. The information led to a cocaine bust, and Wurie was sentenced to more than 20 years in prison. Later, a federal appeals court did side with Wurie and a Fourth Amendment violation.

In a related Fourth Amendment case in a U.S. District Court in New York, a judge ordered Microsoft to hand over a customer’s emails stored in a database in Ireland. Microsoft appealed, and said it would produce emails stored only in the United States. The hearing will take place later this summer. Similar cases in Washington, D.C. and Kansas have had judges deny warrant applications because the warrants were overly broad. Then, on July 18, a New York federal judge approved a warrant so authorities could search a defendant’s entire Gmail account in a case involving money laundering. This recent ruling and the others mentioned have again shown all is not clear in the realm of digital privacy.

Opponents of the judge’s ruling say this decision is a good old-fashioned constitutional privacy violation. They say granting such a general warrant to search everything in an email account is inconsistent with warrants for searches of non-digital property, such as a house. What the judge is authorizing in this case is a fishing trip through someone’s email in order to aid investigators and prosecutors.

The judge’s supporters, on the other hand, say computers and emails contain a great deal of information, and evidence of illegal activity is never clearly marked. Following this argument, they say a broad search is necessary. They further say past court rulings have permitted searches of hard drives, so peeking into a person’s email records is no different. The inconsistency regarding digital privacy rulings has people confused and frustrated. Lower courts are all over the place when it comes to decisions, and the Supreme Court has tilted toward more privacy protection. But until clear laws define whether a computer or mobile device is the same as a file cabinet, as some believe, or whether it is more like a house or building, as others contend, no one will know for sure what to expect when digital evidence is seized.

Reach DCP forum moderator Alex Culpepper at

Debate Forum Question of the Week:

Is our digital property properly protected against unreasonable search and seizure?

Debate Left: Equal packaging under the law

By Ben Tomkins

I have absolutely no problem with a judge ordering a full search of a Gmail account, and I think its limitations are in exact accord with legal precedent involving a search of, say, a house. In an age of digital communication, a search of your email necessarily covers everything you leave in your inbox, sent and other folders, because the packaging of relevant and irrelevant information is identical and so easily made disingenuous.  

Once a judge has granted a search warrant, the police are empowered to search whatever private area for which the judge grants them permission. The warrant must specify an exact location and boundaries of that search, and indicate what specific items are being searched for.

For relevance’s sake, I will omit consideration of warrantless searches, as they are almost exclusively about plain sight, officer safety and time-critical acts such as destruction of evidence etc., and completely irrelevant to the issue at hand.

The amendment used as a defense against the search of email accounts is the Fourth – the protection from unwarranted search and seizure of incriminating evidence. Its inclusion in the Bill of Rights was a direct reaction to British soldiers kicking in a door unannounced and tearing your house apart. The Fourth Amendment was intended to eradicate this behavior from the new republic. However, although the language and intent is historically clear, the implications of said amendment have necessarily revolved around the deeper question: What is privacy?

The inherent problem with email accounts is recent precedent and statutory laws are extremely murky, and, at times contradictory, as judges (read: old people) attempt to negotiate a digital realm that is so far removed from the original language and intention of the Fourth Amendment there is almost no direct link to traditional precedent. In other words, they’re making it up as they go, based on what’s in front of them on a case-by-case basis.

Current physical precedent quite clearly specifies a warrant to search, say, the inside of someone’s house, would limit police from investigating the garage or the backyard. If they are searching for the Ark of the Covenant, they aren’t allowed to look in the bread box, as there’s no chance that something that large – or imaginary – could possibly be stashed in there.

That does not in any way imply they can’t nail you for discovered, but unrelated, offenses that are exposed during the course of a legally conducted search. If they open a closet door and stumble upon a gigantic pile of crack rocks, you’re going up the river even if they never find the box containing the Ten Commandments anyway. The lesson, of course, is, if you’re going to smuggle something off a George Lucas set, make sure it’s significantly larger than the receptacle in which you keep your cocaine. 

Obviously, this creates conflicts when it comes to email. Sure, a judge can give you a search warrant for emails pertaining to drug trafficking – that much is easily defended. On the other hand, some courts have shot down the idea you can search an inbox in its entirety if messages aren’t to and from individuals or organizations that are the subject of the search. 

The argument is each email is like a small box; in order to access its contents, you have to click on it. If it appears to be from, there’s no reason to think it has anything whatsoever to with the drug-related scope of the warrant, and therefore police can’t open it. Don’t for a second think the implications aren’t serious. If is actually a child porn ring, one doesn’t have to think long about the potential collateral damage that little breadbox could cause.

Regardless, I don’t think the argument against unlimited email searches has a megabyte to stand on for two reasons.

First, in an email account, all the breadboxes are the same size. An email is an email is an email, and therefore information could be hidden anywhere. Also, in order to conceal sensitive information, it is almost pathetically obvious the suspect would be communicating in some obfuscated way. As a matter of fact, it would be ridiculously stupid if they weren’t. By definition all emails are relevant.

Second, police see crazy things during searches all the time. In a physical search for our religious icon, the police could easily come across your wife strapped to the bed with a you-know-what, you-know-where. You laugh, but it happens. By definition, a search of your property will result in a myriad of incidental discoveries about your personal life that are wholly outside the scope of the warrant.

Police simply ignore this stuff the same way your cleaning lady discretely flushes the toilet. 

Ultimately, I think these defenses are 99 percent about finding a way to get a client off the hook and 1 percent about real privacy. Seriously, if you’re committing a crime, then get a secret email address with a company no geezer behind the bench will have ever heard of and it will probably be a non-issue. I don’t believe in people going to jail for illegal searches, but there’s a small part of me that thinks you should have a slightly broader scope if someone is painfully stupid. They might actually try to stuff the Ark into a breadbox.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at

Debate Right: You’ve got mail, for your eyes only

By Rob Scott

How many emails do you send on any given day? Possibly emails sent for work, for fun or any other purpose. Most of us even have more than one email address.

Email, like phone conversations and text messages, can be and typically are, very personal and contain private expression. This is probably why almost all email requires a password to sign in to utilize it. We would not want just anyone to look at our emails. According to Mass Transmit, an email marketing blog, more than half of the 3.1 billion email accounts in existence in 2013 were accessed via a mobile device like a smartphone.

As always, when technology expands and explodes, the law moves slower and needs time to catch up. Domestic law enforcement now wants to use email warrants to begin to look through users’ emails. Essentially, law enforcement would receive a warrant from a judge to allow them to look through any email sent or received on your email accounts to supply any evidence of a crime.

This issue brings up obvious privacy concerns. The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, search people and their property and seize objects and contraband, such as illegal drugs or weapons. These limits are the bedrock of search and seizure law.

The Fourth Amendment to the U.S. Constitution states: “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, and the persons or things to be seized.”

The search and seizure provisions of the Fourth Amendment are all about privacy. Privacy extends from your bedroom to telephone calls and even your email communications. To honor this freedom, the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement authorities.

The flip side is the Fourth Amendment does permit searches and seizures that are considered reasonable. In practice, this means the police may override your privacy concerns and conduct a search of you, your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel or whatever, if: the police have probable cause to believe they can find evidence you committed a crime, and a judge issues a search warrant.

Police officers obtain search warrants by convincing a judge or magistrate they have probable cause to believe criminal activity is occurring at the place to be searched or evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called affidavits, which report either their own observations, those of private citizens or police undercover informants. If the judge believes the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.

The suspect, who may be connected with the place to be searched, is not present when the warrant is issued and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

The police can search only the place described in a warrant, and usually can seize only the property the warrant describes. For example, the police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene of a search. If an officer merely has a reasonable suspicion an onlooker is engaged in criminal activity, the officer can only detain and question the onlooker and, if necessary for the officer’s safety, conduct a frisk for weapons – but not do a full search.

Taking the issue at hand with the relevant law, if an email warrant is issued broadly, law enforcement could use anything found in your email to bring criminal charges, including possibly something unrelated to their investigation. Searching through your email truly is no different than searching your house, car or person under the law. You have an obvious expectation of privacy and have protections from intrusions into that privacy.

Due to this, if an email warrant is necessary and meets probable cause, judges must limit that warrant to particular searches of the email account. The tech gurus used to conduct the search can use search terms or other ways to find the relevant emails subject to the limited email warrant.

If there are no limits on the government looking through our emails, then a slippery slope has begun.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman, founder of the Dayton Tea Party, member of the Dayton Masonic Lodge and Kettering Rotary. He can be contacted at or

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