By Silha Center Staff
A three-judge panel of the United States Court of Appeals for the Eighth Circuit ruled in November 2002 that faxing a search warrant seeking e-mails from Yahoo!'s server was reasonable under the Fourth Amendment, even though no law enforcement official was present at the time the search was conducted. Judge Clarence Beam, who authored United States v. Bach, 2002 U.S. App. LEXIS 23726, found that the Fourth Amendment imposes a flexible "reasonableness" standard on searches. In this case, the appeals court ruled that because no warrant was physically served, no persons or premises were searched in the traditional sense, and Yahoo!'s technicians did not directly confront the individual whose e-mails were seized, the search was constitutional.
The case began in October 2000, when Sgt. Brooke Schaub of the St. Paul, Minn. Police Department was provided with a text document from a mother showing that her son had received sexually suggestive comments while visiting a Yahoo! chatroom. She told Schaub that the person used the screen name "dlbach15" and met with her son on one occasion.
Schaub used Yahoo!'s publicly-available profiles to trace the username to Dale Bach, a 26-year-old registered sex offender living in Minneapolis. Three months later, a Ramsey County judge approved a state search warrant ordering Yahoo! to hand over an e-mail sent to or from Bach or the boy. Schaub faxed the search warrant to Yahoo!, which sent him a zip disk with the e-mail messages. One of the messages contained a photograph which the police decided constituted child pornography.
With that evidence, police obtained a search warrant from a Hennepin County judge magistrate for Bach's home and computer. In August 2001, Bach was indicted for possession, transmission, receipt and manufacture of child pornography. He filed a motion in federal District Court in Minneapolis to suppress the evidence obtained by the execution of both warrants. Although District Court Judge Paul Magnuson upheld the search of Bach's home and computer, he ruled that the Fourth Amendment requires police to be on hand when a search warrant is executed by third parties. "Police officers have taken an oath to uphold federal and state constitutions and are trained to conduct a search lawfully and in accordance with the provisions of the warrant," he wrote. "Civilians, on the other hand, are not subject to any sort of discipline for failure to adhere to the law. " (United States v. Bach, 2001 Dist. LEXIS 21853).
But the appeals court reversed. "Civilian searches," Beam wrote, "are sometimes more reasonable than searches by officers." Citing examples where experts such as dentists, software experts, and bank employees assist law enforcement in conducting searches, Beam contended that their expertise may actually make a search less intrusive because an expert would know better than a police officer what information would be useful to the investigation. The opinion also noted that the items seized were on Yahoo!'s property, and that the officers involved complied with the Electronic Communications Privacy Act (ECPA), 18 U.S.C. section2701.
The panel further ruled that the provisions of ECPA, which require law enforcement to be present at a search, apply to federal officials, not to state law enforcement officers executing a state-issued warrant. The appeals court acknowledged that Congress clearly intended to create a statutory expectation of privacy in e-mail files under the ECPA, but did not reach the question of whether Bach had a Fourth Amendment privacy interest as well. (See "Fall 2002 Silha Forum Asks: What is the Future of Privacy in Cyberspace?" in this issue.)