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Digital messages, privacy protections and third-party providers

Given how ubiquitous electronic messages have become in our society, you'd think there would be more clarity about their privacy protections. In New Jersey and across the nation, however, the authority of law enforcement agencies to access e-mails and text messages with or without a search warrant is far from settled.

The issue looms large, however, as historic Fourth Amendment protections against unreasonable search and seizure confront the desire by many law enforcement agencies to tap into digital data held by cellphone companies and other third-party service providers.

A recent ruling in Kansas provides an example of the issues that are arising. Such issues can come up both with suspected computer crime and in other cases.

In the Kansas case, authorities sought an extensive trove of e-mails and instant messages from Verizon, Google and several other digital service providers. The e-mail and messages were account holders whom the authorities suspected of the robbery of computer equipment.

A federal magistrate judge ruled against the search warrant request made by government agents. The judge reasoned that the government's request was too broad in scope.

In other words, a valid search cannot seek the proverbial "everything but the kitchen sink." Or, to use another common metaphor, it cannot be a fishing expedition.

Whether it concerns digital data or physical objects, a valid search must be sufficiently particular in its aims. It cannot be a general commission to rove hither and yon. It must, rather, have "sufficient limits or boundaries" to be valid under the Fourth Amendment.

Of course, it is a different issue when government investigators try to obtain information from third-party providers without even seeking a search warrant first. That situation raises key digital privacy issues as well.

Source: The New York Times, "Judge Says Search Warrants for E-mails Must be 'Limited'," Somini Sengupta, August 30, 2013

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