Notice for E-Mail Warrants and the James Rosen Case

A few days ago, Ryan Lizza had a story in the New Yorker detailing litigation over whether the search warrant to search James Rosen’s e-mail account required that the government notify Rosen of the search. The procedural history is actually kind of complicated, but the key idea is that Magistrate Judges Kay and Facciola thought that the statute required notice to Rosen (which could be delayed on a finding of need) when it obtained the warrant to access his e-mail account. The government appealed that ruling to District Judge Royce Lamberth, who disagreed with the magistrate judges and signed the application allowing the search warrant without notice.

Lizza’s story mostly just reports what happened, without a lot of spin. This morning, however, the Drudge Report has a top-left link to Breitbart’s coverage by Larry O’Connor suggesting that something nefarious is afoot. The Breitbart story says that the DOj went “judge shopping” and that “the effort by the Justice Department to obtain the controversial court order was arduous, contentious, and unsuccessful until finally a third judge acquiesced.” It concludes:

The revelation that two courts denied the secret subpoena before Lamberth finally agreed will damage the narrative that there was nothing extraordinary or out-of-bounds about Holder’s attempt to delve into the private communications of Rosen and his employer.

Putting aside the minor errors in this sentence — it was a warrant not a subpoena, for example — I think it’s important to realize that the magistrate judges were pretty clearly wrong in their interpretation of the law.

The relevant law, the Stored Communications Act, does not require notice to the customer or subscriber when the government obtains a search warrant to search an online account. Under the statute, prior notice is required if the government obtains contents with less process than a warrant. But when the government obtains a warrant, no notice is required. See, e.g., 18 U.S.C. 2703(b)(1) (” A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection—(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant.”) (emphasis added). Federal Rule of Criminal Procedure 41 has a notice requirement, to be sure, but it is only that the notice be served where the property was taken — which in the case of an e-mail account held by an ISP, means notice to the ISP not the customer. See generally In re Application of the United States for a Search Warrant for the Contents of Electronic Mail, 665 F. Supp.2d 1210 (D. Or. 2009).

Of course, that does not mean that the existing statute strikes the right balance as a matter of policy. There are substantial arguments that Congress should revisit the law and add a notice requirement. Indeed, there are bills pending in Congress that would do just that. But as a matter of current statutory law, I think it’s pretty clear that the notice requirement did not apply and that Magistrate Judges Facciola and Kay simply misread the statute and Rule 41 when they concluded that it did.

Based on past posts on this topic, I gather that some readers will find my legal analysis pedantic and irrelevant. Understanding the law does not change the fact that the government obtained Rosen’s e-mail without giving him notice, and that the government was willing to go to the District Court to ensure that. While that’s true, my sense is that an understanding of the law here does put a different spin on the litigation. The magistrate judges misread the statute, and the government sought review of their error so that the Rosen warrant would be treated like every other e-mail warrant. My sense is that this context makes the story less “extraordinary and out-of-bounds” than it would be if the government’s legal argument had been an aggressive one that pushed the envelope for this specific case.