Court OKs faxed warrants

A federal appeals panel has ruled that police did not need to be present when executing a search warrant at an Internet company and instead could fax the request.

In the ruling Monday, a panel of the 8th Circuit Court of Appeals said police acted legally when they faxed a search warrant to Yahoo during an investigation into alleged child-porn activity.

The ruling is believed to be the first case involving the question of whether police can fax a search warrant, a practice that increasingly has become a common crime-fighting tactic. The case has been closely watched by both privacy experts and Internet service providers, which are grappling with law enforcement's increasing reliance on technology during investigations and the potential for such searches to be overly broad.

Defense attorneys had tried to get evidence from Yahoo servers suppressed on the grounds that police needed to be physically present during the execution of a warrant to oversee the process. However, the appeals court sided with prosecutors, who argued that the requirement could hinder an investigation.

"Official presence should simply be one of many factors considered in determining the reasonableness of the execution of a search warrant," the judges wrote, adding that the technical expertise of Yahoo workers outweighed that of the police. In many cases, they said, "civilian searches outside the presence of police may also increase the amount of privacy retained by the individual during the search."

Representatives of ISPs also had argued in favor of faxed search warrants, saying that police presence might actually lead to an overly broad search.

"By sitting next to the technician, the police officer might see the subject lines or addressees of some of the e-mails outside the warrant's date range before the engineer manages to isolate the responsive e-mail," Yahoo attorneys wrote in a friend-of-the-court brief they co-authored with NetCoalition, the Computer and Communications Industry Association, and the United States Internet Service Providers Association.

The decision stems from a case in which a woman tipped off a St. Paul, Minn., police sergeant that her son, a minor, was receiving sexually suggestive comments from someone using the name "dlbch15" in a Yahoo chat room.

Using Yahoo's publicly available profile, the sergeant traced the screen name to Dale Robert Bach, a registered sex offender living in Minneapolis. The sergeant then obtained a search warrant from a Ramsey County judge that ordered Yahoo to turn over any e-mail correspondence between dlbch15 and the boy.

The sergeant faxed the warrant to Yahoo, and the company responded by sending back a Zip disk containing the messages, which included a photograph that police deemed child porn.

Bach was then arrested and indicted on charges related to receiving, transmitting and possessing child pornography.

Bach's attorney argued that the search violated the Fourth Amendment, which prohibits unreasonable search and seizures, because it took place outside of the presence of a police officer. In December 2001, a lower court agreed and ordered the evidence suppressed, saying that without police oversight, there was no guarantee that Yahoo employees complied with the terms of the warrant.

On Monday, the appellate court reversed that decision and sent the case back to the lower court.