E-Mail Accounts, The Warrant Requirement, and the Territorial Limits of Court Orders

My friend Jennifer Granick points me to an interesting new case, Hubbard v. Myspace (S.D.N.Y. June 1, 2011), that touches on a fascinating Fourth Amendment question: What are the territorial limits of search warrants for Fourth Amendment purposes? To be clear, the Hubbard case itself involved a statutory challenge, not a constitutional one. The plaintiff sued MySpace for complying in California with a state warrant issued in Georgia that was faxed to MySpace in California on the ground tat the Stored Communications Act, 18 U.S.C. 2703, did not allow MySpace to comply with the out-of-state warrant. As a statutory claim, the argument was pretty clearly incorrect. But at the end of his opinion (p.11) Judge Kaplan touches on a really interesting issue: What about the Fourth Amendment?

Specifically, the interesting issue is this: If the Fourth Amendment imposes a warrant requirement on government access to an e-mail account, which I think it does and the Sixth Circuit has expressly so held, is the warrant requirement satisfied by an out-of-state warrant from a jurisdiction far away with no authority to actually compel compliance with the warrant? Or is the warrant requirement only satisfied by a warrant issued locally, or at least in the same state or federal district? This issue generally doesn’t come up in traditional physical investigations because the police will get a local warrant to physically search a local location, and arrests generally don’t require warrants. But warrants for e-mail accounts are unusual: The police obtain the warrant and fax it to the ISP, and the Stored Communications Act contemplates out of state warrants. ISPs usually don’t have to comply with out of state warrants, as they are out of state and not binding on them: But the question I’m interested in here is, does the out of state warrant satisfy the warrant requirement?

I would think the best answer is that the warrant requirement does not have a territorial limit: For Fourth Amendment purposes, the warrant requirement is satisfied so long as a neutral and detached magistrate somewhere has found probable cause, established particularity, and signed the warrant authorizing the disclosure. I think that for a few reasons. First, the Eighth Circuit has expressly approved of the constitutionality of an out-of-state e-mail warrant in one case, United States v. Bach, which involved a Minnesota state warrant for an e-mail account that was faxed to Yahoo in California. Although Bach did not discuss the extraterritorial nature of the warrant, the approval of the facts of that case hints that the extraterritorial nature of the warrant doesn’t matter. Second, I think the territorial limits of courts to issue warrants is at least arguably the kind of statutory limit on state power that the Supreme Court has said is irrelevant to Fourth Amendment reasonableness in Virginia v. Moore, 128 S.Ct. 1598 (2008). Third, cases from the wiretapping context have held that judges in one district can authorize intercepts in other districts. See, e.g., United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997) (Posner, J.)

Finally, if warrants do have territorial limits for purposes of the warrant clause, we need a theory for what those limits are, and figuring that out is actually kind of tricky. For example, imagine the rule is that the warrant requirement is satisfied only if the issuing judge’s power to issue warrants includes that physical location under the statutory warrant rules. That would mean that whether the warrant requirement is satisfied is only a matter of legislative grace, which seems arbitrary: Fiddling with the statutes would change the constitutionality of the search. Alternatively, you might try to argue that the territoriality is state by state, such that each magistrate has some implicit power to issue warrants in the state that authorizes the judge’s commission (or perhaps nationwide in the case of federal warrants). That’s a theory, but I don’t think it has much in the way of a constitutional basis. So putting the pieces together, I would say that the Fourth Amendment warrant requirement is satisfied by a warrant being issued somewhere, independently of whether it was issued in a particular state or district.