When journalist James Rosen became a suspect in a federal investigation into the leak of classified information, his personal emails were searched and seized by the government. He had no knowledge of this, however, because the warrant applications were filed under seal and the court permitted the government to delay providing notice to him. Although the government argued they had no obligation to notify Mr. Rosen that his email account had been seized, Magistrate Judge John Facciola ordered the government to provide such notice to Mr. Rosen. Judge Facciola’s decision was stayed and ultimately reversed by Chief Judge Royce Lamberth. This case was recently unsealed and provides an opportunity to examine the complicated issues arising from the government’s search and seizure of e-mail communications.

Notice Required Under The Electronic Communications Privacy Act

One of the government’s principal contentions was that the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701-2710 (“ECPA”), allowed it to search and seize emails without ever giving notice to the a subscriber or customer. That view is supported by a superficial reading of the statute, which provides that “[a] governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication . . . without required notice to the subscriber or customer.” Id. § 2703(b)(1)(A). But as Judge Facciola astutely observed, that provision still requires the government to obtain the warrant “using the procedures described in the Federal Rules of Criminal Procedure.” Thus, he read ECPA as expressly incorporating the requirements of Rule 41 of the Federal Rules of Criminal Procedure.

Chief Judge Lamberth agreed on this issue. He noted that the Patriot Act of 2001 had changed the ECPA’s language from “a warrant issued under” to “a warrant issued using the procedures described in” the Federal Rules. As such, he concluded “that all of Rule 41’s procedural requirements apply to Section 2703(b)(1)(A).” Thus, both judges agreed that Rule 41 was incorporated into ECPA.

Notice Required Under Rule 41

However, Judge Lamberth did not agree with Judge Facciola’s interpretation of Rule 41. Judge Facciola reasoned that because Rule 41(f)(1)(C) requires that a copy of the warrant be given “to the person from whom . . . the property was taken,” that the government had to notify the email subscriber—even if the notice was somewhat delayed. He concluded that the plain text of ECPA therefore “requires the very notice that the government seeks to avoid.” Otherwise, we would be left with “the insupportable conclusion that Congress intended the government to copy and read the entirety of the e-mail messages, and yet to never be required to provide notice to the owner of the e-mail account.” To avoid this result, he ordered that notice to the subscriber—although it might be delayed—must be provided.

Judge Lamberth disagreed. He adopted a literal reading of Rule 41, which only requires an executing agent to “give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken . . . .” Judge Lamberth noted that the rule says nothing about the property’s owner. From this, he concluded that the government had fulfilled its notice obligation by informing Google that Mr. Rosen’s e-mails had been searched and seized.

Questions Going Forward

The issues at stake in this case are potentially far reaching. Rule 41 governs all warrants; there is no reason why Judge Lamberth’s reasoning would be confined solely to e-mails. Thus, the same logic could apply to searches and seizures of Facebook profile information, or Drop Box accounts. If Rule 41 only requires notice to be given at the premises of the seizure, then subjects or targets of government investigations may never find out that the government has searched all kinds of their electronic information. The impact of this decision shifts the burden to individuals to constantly ask their e-providers whether any of their personal information has been turned over. If Congress made a conscious choice to impose this burden, Judge Lamberth did not provide any evidence of it.

Instead, it is more likely that Rule 41 simply does not contemplate a world in which our seize-able property is stored across numerous and remote servers around the world, hosted by third parties with whom we may never interact. Unlike tangible property, we do not keep track of—and often do not even conceive of—where our electronic property is “located.” How many people even know where their electronic information is physically stored? For most of us, who do not, how will we ever know whether it has been searched or seized by the government?