The Fourth Amendment protects an individual’s right to privacy, generally enforceable in the criminal courts via a Mapp hearing.1 Today, litigation continues to expand focusing on the scope of government access to an individual’s digital footprint, increasingly in the digital files of third-party service providers. This article will address recent litigation concerning government seizures of email accounts using search warrants resulting in the seizure of voluminous digital records, and the legality of the lengthy retention of non responsive emails for an indefinite period.

Seizing the Haystack

The authority of a lawful search and seizure pursuant to a warrant of a massive amount of relevant material to seek evidence of criminality has been long established.2 Nevertheless, it has been said that computer searches pose unique demands on law enforcement because “[c]omputers are simultaneously file cabinets with millions of files, and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes.”3 These digital searches usually involve locating critical evidence in digitized “haystacks” of possibly billions of bytes or more of data, which may be encrypted, password protected or booby trapped depending on the sophistication of the target of the investigation.

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