As we continue to be inundated with the cacophony surrounding the letter of FBI Director James Comey on Friday, we should not lose sight of the troubling legal procedures that resulted in the FBI gaining possession of Abedin’s emails. According to press reports, certain “devices” containing emails were “seized” by the FBI approximately a month ago in connection with the investigation of Anthony Weiner. While details of the Weiner investigation are not public, it is likely that the government obtained a warrant that allowed for seizure of electronic files relating to him—not the communications of his wife.

In this age of massive quantities of electronic data, however, the practice of an initial “overseizure” by the government has become common. Conventional wisdom now holds that the government cannot conduct an on-site review of the volume of data on electronic devices and so it is permitted in the first instance to take or copy the contents of the computer. The clear danger presented by this Anthony Weiner seizure, and the seizures in many cases, is that the consideration that was extended to the government—to allow the initial overseizure for the purpose of complying with the warrant—is being used by the government to seize and retain any confidential, personal or even intimate communications that happen to reside on the seized computer.

‘Overseizure’

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