When the government serves a search warrant on an Internet service provider to seize the contents of an e-mail account, prosecutors have no obligation to notify the account holder, a federal judge in Washington ruled this week.
Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia overturned a lower judge’s ruling that would have required the government to notify the e-mail subscriber. Lamberth’s ruling [.pdf] was unsealed on Monday.
What little is known about the dispute is contained in Lamberth’s eight-page opinion. The name of the e-mail account holder is redacted. There’s no indication about what the government is looking for and why it wants it. The National Security Section of the U.S. Attorney’s Office in the District is taking part in the probe, court records show. The chief of the section, Gregg Maisel, declined to comment about the ruling.
Lamberth was asked to weigh in on whether a particular provision of the federal rules of criminal procedure applies to the Electronic Communications Privacy Act. Rule 41 requires an officer to give a copy of the warrant and a property receipt to the person from whom the property was taken. In the alternative, an officer is permitted to leave a copy of the warrant and receipt at the place where the officer took the property.
The government, Lamberth said, is not required under the act to give notice to the subscriber of an e-mail account that the government searched. Prosecutors satisfy their obligation when they leave a copy of the warrant with a third-party Internet service provider—in this case, Google.
The government applied for a warrant in May to acquire the contents of a Google e-mail account. A magistrate judge, Alan Kay, issued the warrant.
Kay checked a box on the warrant to allow for delayed notification to the e-mail subscriber. Prosecutors, however, had not asked for delayed notification in their warrant application. (Kay later said he had checked the box in error.)
After prosecutors asked for clarification of Kay’s intent, another magistrate judge, John Facciola, issued an opinion in July that said the government is obligated to notify the subscriber to the e-mail account after the execution of a warrant. Facciola later denied the government’s effort to vacate the ruling. Prosecutors turned to Lamberth to review Facciola’s decision.
An Internet security and privacy expert, Marc Zwillinger of Washington’s Zwillinger Genetski, said Lamberth’s ruling follows in line with other courts that have ruled the government has no obligation to notify e-mail users after a warrant has been executed.
Advocates in the privacy community are pushing for reform in which e-mail users would receive notice at some point in the warrant process, Zwillinger said.
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