3.33Issuance of Search Warrants for Monitoring Electronic Communications

No Michigan statute explicitly governs the issuance of search warrants to monitor private conversations. The federal Electronic Communications Privacy Act, 18 USC § 2510 et seq., consists of three parts. 18 USC 2510–18 USC 2522 is entitled “Wire and Electronic Communications Interception and Interception of Oral Communications,” and prohibits the unauthorized interception of wire, oral, or electronic communications. 18 USC 2701– 18 USC 2712 is entitled “Stored Wire and Electronic Communications and Transactional Records Access,” and is known as the “Stored Communications Act (SCA),” and concerns stored electronic communications. Finally, 18 USC 3121–18 USC 3127 is entitled “Pen Registers and Trap and Trace Devices,” and sets out the procedure for government installation and use of pen registers and trap and trace devices.

The United States Supreme Court has held that third-party monitoring (wiretaps) of private conversations, without the consent of either party, are subject to the warrant requirements of the Fourth Amendment. Katz v United States, 389 US 347 (1967). “[T]he very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration.” United States v Warshak, 631 F3d 266, 285 (CA 6, 2010).¹ “[T]he Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.” Id. To that end, “email requires strong protection under the Fourth Amendment.” Id. at 286. “[A]gents of the government cannot compel a commercial ISP [(Internet Service Provider)] to turn over the contents of an email without triggering the Fourth Amendment.” Id. “[I]f government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.” Id. In Warshak, the United States Court of Appeals for the Sixth Circuit stated that “[t]he government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.” Id. at 288 (holding that the government violated the Fourth Amendment when it obtained the contents of the defendant’s e-mails without a warrant). Further, the Court held that “to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.” Id.

Committee Tip:

Requests for electronic communications are becoming increasingly prevalent. To stay in line with impending changes in the law, the best practice is to have law enforcement seek a search warrant, instead of signing a subpoena.