Warrants: Searches and the Digital World

It’s a pitch-dark morning and you hear the sound of several vehicles rolling past your home. Then, coming from further down the street, you hear sirens, interrupted by a voice on a loudspeaker. You can’t distinguish every word, but some words are unmistakable, “F-B-I ... search warrant.”

Neighbors in their pajamas open their doors and step outside. Some take out their phones and begin recording the scene.

You see at least 10-12 people dressed in body armor and tactical gear. After people exit the residence and the initial tension eases, more FBI vehicles and personnel arrive.

Members of the press arrive. Some neighbors leave for work. Some sit on their porches and watch. Some walk their children away from the commotion to catch the bus for school.

An abundance of recordings, pictures, and newscasts over the years have captured the events around search warrants. 

Search warrants don't just apply to the physical world, but also the digital world. As people manage numerous online accounts, more data than ever is collected by companies. That data is exposed to legal processes, such as search warrants. 

Protection Against Unreasonable Searches

The Fourth Amendment says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Though not mentioned in the Constitution, the courts have upheld that a search warrant must be issued by a “neutral and detached” magistrate to prevent unreasonable searches by law enforcement.

Here is an example of the components and steps for a search by federal law enforcement:

• An affidavit is written outlining the facts to establish probable cause that evidence of a crime will be found at the described location
• The location to be searched (e.g., exact address) is described in an attachment
• Descriptions of items to be seized (e.g., any and all controlled substances) are described in a separate attachment
• The affidavit and attachments are sent to the United States Attorney’s Office
• An application is prepared, signed by the law enforcement officer, and sent to a judge for review
• The law enforcement officer swears to the accuracy of the affidavit before the judge
• The judge verifies probable cause has been established and signs the search warrant
• The search warrant is prepared by the court and provided to the law enforcement officer
• Then, the law enforcement agency can execute the search warrant.

[For more details, see Rule 41 for the Federal Rules of Criminal Procedure.]

As mentioned in the first subpoena article, other investigative methods have likely occurred before a search warrant is executed because of the principle of least intrusive means. Executing a search of a residence is highly intrusive to a person’s privacy.

The establishment of probable cause is not difficult if the facts lead to a search warrant. At the same time, the government can have a presumption of regularity with the courts. This means the courts presume that the government has legally and properly carried out their work. The presumption of regularity can be misused if an agency or an agent lacks candor. This presumption is eroding in some places today as noted in a recent study by Just Security.

This is why it is important that law enforcement agencies hold to the standard of integrity. Without it, there will be many downwind effects.

Expansion of Fourth Amendment Protections

Over the years, the legal system has had to determine how to apply the Fourth Amendment to changes in society. For example, it was determined in Katz v. United States (1967) that law enforcement needed to obtain a search warrant to tap and listen to phone conversations inside a public telephone booth because a person had a reasonable expectation of privacy.

The most recent impact on Fourth Amendment protections was in the case Carpenter v. United States (2018). The court determined a search warrant was generally required to access historical cell phone location records, limiting the Third-Party Doctrine.

Fourth Amendment Considerations in Digital Spaces

Cyber investigations, criminal and national security, are conducted through gathering and synthesizing enormous amounts of digital artifacts. How does an investigator track down an unknown user of an email address or moniker who likely is not in the United States? They follow the digital footprint through methods such as subpoenas and search warrants.

The return from a tech company in response to a search warrant includes all the information that is available through a subpoena plus content.

The return provides far more information than the content of messages alone. Some tech companies collect a user’s search requests, location data, pictures, and accounts linked by cookies. Social media accounts may include posts, private messages, and biographical data. All these things, if collected by the company, may be requested via a valid search warrant on the account.

With the digital world carrying this amount of data, the legal system will have to adjust the scope of Fourth Amendment protections, what has been called the Equilibrium Adjustment Theory. This equilibrium is meant to balance government power with privacy protections to prevent the government from abusing that power.

Everyone has a stake in this since most individuals carry well over 100 online accounts! And no, “Hide My Email” feature does not protect your privacy from valid legal process.

The Responsibilities of Tech Companies

As with subpoenas, tech companies do not have the latitude to push back on the legal standard required to issue the search warrant. They can object to overly broad requests, but they cannot object to whether probable cause has been established.

If a tech company receives a valid search warrant, they must comply. Most search warrants have a compliance window of 14 days.

Unlike a physical search of a residence that is observable, a search of a digital account may not be known to a user because of a nondisclosure order served in conjunction with the search warrant. A tech company is legally prohibited from sharing a search warrant’s existence with the user until the nondisclosure order expires. However, a nondisclosure order can be extended. This is true of grand jury subpoenas as well. 

Up Next

In the next analysis, we will continue our discussion of warrants: arrest warrants and administrative arrest warrants and their implications for modern society.