However, this decision runs contrary to opinions offered in other courts around the country in Kansas, and the District of Columbia. A D.C. judge denied access to an email account because doing so would allow the government to get a hold of data “for which it has not established probable cause.” Meanwhile, the court in Kansas stated that a warrant similar to the one issued by Judge Gorenstein did not “limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.”
Due to the fact that communications between drug dealers often contain codewords in an effort to evade the attention of law enforcement officials, searching through emails isn’t a cut and dry exercise. That seems to be at least part of the basis of Gorenstein’s argument.
“For example, in a drug investigation, it might be obvious based on information from an informant or other source that emails referring to the purchase or importation of ‘dolls’ refers to cocaine, but investigators might only learn as the investigation unfolds that a seemingly innocuous email referring to purchase of ‘potatoes’ also refers to a cocaine shipment,” Gorenstein said.
Though the D.C. judge gave the government the option to enlist an email provider’s help with an investigation, Gorenstein said that the email service provider may not be able to adequately assist in these kinds of situations.
“While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so,” Gorenstein said.
Judge Gorenstein’s support for the search and seizure of an email account will likely raise privacy concerns, and it will be interesting to see whether Google issues a statement on the matter.
