When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-Mail Surveillance

To date, most of the discussion regarding how the Constitution protects privacy interests in stored e-mail has focused on whether a warrant is required to conduct stored e-mail surveillance and whether probable cause is the appropriate justification standard . Little to no attention has been directed toward how the particularity requirement of the Fourth Amendment applies to searches and seizures of stored e-mail communications. Only Susan Freiwald has argued that procedural particularity should be required in order for government acquisitions of stored e-mails to pass constitutional muster, yet she did not enumerate specific standards of particularity. This Article addresses how the particularity requirement applies to stored email surveillance and sets forth standards to evaluate the particularity of search warrants for stored e-mail communications. This Article proceeds in four parts. Part II explains why and how procedural protections derived from the particularity requirement have been codified by Congress and imposed by the courts in order to limit certain electronic-surveillance techniques. Part III describes how probable cause defines which stored e-mails the government may search and seize and the reason why scholarship has overemphasized probable cause in the context of stored e-mail surveillance. Then described is how current statutory law governing stored e-mail surveillance is in disharmony with the Fourth Amendment, and therefore how it must be amended to require search warrants for stored e-mail surveillance. Part IV proposes concrete standards for determining whether a warrant authorizing a search and seizure of stored e-mail communications adheres to the particularity requirement of the Fourth Amendment. Finally, Part V addresses the practicalities of the proposed particularity standards and responds to several potential objections concerning the implementation of these standards