Last Thursday, Assistant U.S. Attorney Bridgid Dowdal told a panel of Eighth Circuit judges that it should be acceptable for police to fax a search warrant to Yahoo--instead of showing up in person--during a recent child pornography investigation.
"This is a situation that is not the traditional execution of a search warrant," Dowdal said. But, she said, fax-delivery provided "the highest level of protection" of a suspect's privacy rights.
The case, USA v. Dale Robert Bach, appears to be the first where an appeals court will rule on the validity of faxed search warrants, a new law enforcement trend that worries privacy advocates because police can gather far more information more quickly than they could under traditional rules.
The Justice Department is appealing a decision from a district court, which ruled that police must be present when executing search warrants. In court documents, the government argued that such a requirement would hinder "investigations into other types of crime that commonly involve the use of computers, including Internet fraud, hacking, software piracy, cyberstalking, threats against the president, and international terrorism."
William Orth, a defense attorney who is seeking to suppress incriminating information obtained by the search warrant, said courts should not rush to grant police more power in a newly security-conscious climate. "There's always time to do the right thing," Orth said. "In the 19th century, (we battled for privacy rights for) postal mail--in the 20th century, the telephone. Now it's the Internet."
"The Justice Department, unilaterally, without permission from Congress, told law enforcement across the country 'they're not really search warrants--just subpoena them,'" Orth said during oral arguments. "And that's why this law enforcement officer, following that trend, just faxed a search warrant like it was a subpoena."
Under federal law, police can use a subpoena to learn basic information about a person, such as name, home address, billing records, IP (Internet Protocol) addresses used, and payment information. To obtain more detailed information such as e-mail records, however, police must show "probable cause" and obtain a search warrant.
In October 2000, Sgt. Brook Schaub of the St. Paul Police Department received a tip from a mother who was worried about her son being sent sexually suggestive comments from a person in a Yahoo chat room. That person used the screen name "dlbch15," and had apparently met her son once already.
Schaub traced Yahoo's publicly available profile of that screen name to Dale Bach, a registered sex offender living in Minneapolis who had pleaded guilty four years earlier to sex with a 14-year old boy.
Three months later, at the sergeant's request, a Ramsey County judge approved a state search warrant ordering Yahoo to hand over any e-mail sent to or from Bach or the boy, called "AM" in court documents. Schaub faxed the search warrant to Yahoo, which sent back a Zip disk with the e-mail messages. One contained a photograph that police determined was child pornography.
Bach eventually was indicted and arrested. But in December 2001, U.S. District Judge Paul Magnuson ordered that the evidence obtained via search warrant would be suppressed.
The judge's reasoning was simple: The law requires that police be present for search warrants. "There were no safeguards ensuring that the Yahoo employees conducting the search and seizure of information in Bach's e-mail account were cautiously abiding by the terms of the Ramsey County warrant," Magnuson wrote in his decision. "Accordingly, the execution of the Ramsey County warrant does not pass constitutional muster."
Magnuson was talking about the Fourth Amendment, which bans "unreasonable searches and seizures."
In addition, Magnuson said, federal law governing search warrants clearly says that police officers must be "present and acting in its execution." Minnesota state law includes a similar requirement.
Other groups weigh in
Industry groups argued in a friend-of-the-court brief that faxed search warrants were acceptable under the Fourth Amendment. The amicus brief, filed by Yahoo, the Computer and Communications Industry Association, NetCoalition and the United States Internet Service Providers Association, says that the volume of search warrants has increased after Sept. 11, 2001 and is likely to increase even more after the Council of Europe's cybercrime treaty takes effect.
"Conceivably the police officer could sit next to the technician as the technician retrieved the requested information. But this would increase, rather than decrease, the likelihood of an overly broad search," the brief said. "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."
"Formal procedures, including the requirement of an officer's presence at the service of a search warrant, have been in place since the 1700s to safeguard individuals from unwarranted intrusion upon their privacy by government officials, and to discourage governmental abuse of power by ensuring guarantees of trustworthiness and accountability," EPIC said.
Especially because an e-mail provider would be immune from lawsuits filed by customers upset about privacy violations, EPIC said, it's important for courts to protect accountability by ensuring police are present.