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What are the legalities of a general search of an email?

Portland, OR |

I understand that the 4th amendment protects citizens from unlawful searches. I've also read that email may or may not be protected by the 4th amendment or at least be protected enough that a search warrant is required to access the contents of an email. But how would a search warrant of an email not be a over-broad "general search"? For example a search warrant can't say "Take all papers in the provided location" because the term "papers" is far too broad. How would email be any different? A content provider couldn't screen email for content before releasing the information either. How does the law handle such caveats?

Attorney Answers 4


  1. Best answer

    While you are correct that the Fourth Amendment prohibits general warrants, most of the government's searches of emails are by way of administrative subpoena. The government only needs a warrant to obtain unopened emails sent within the last 6 months. 18 USC § 2703 http://www.law.cornell.edu/uscode/text/18/2703

    The New York Times recently published an excellent article about the ease with which the Government can access private electronic communications, and the limited precautions we can take to keep our information private:

    "The Fourth Amendment requires the authorities to get a warrant from a judge to search physical property. Rules governing e-mail searches are far more lax: Under the 1986 Electronic Communications Privacy Act, a warrant is not required for e-mails six months old or older. Even if e-mails are more recent, the federal government needs a search warrant only for 'unopened' e-mail, according to the Department of Justice’s manual for electronic searches. The rest requires only a subpoena.

    Google reported that United States law enforcement agencies requested data for 16,281 accounts from January to June of this year, and it complied in 90 percent of cases."

    http://www.nytimes.com/2012/11/17/technology/trying-to-keep-your-e-mails-secret-when-the-cia-chief-couldnt.html?pagewanted=all&_r=0

    Graham C. Fisher is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. Graham C. Fisher, Attorney at Law | Phone: 503-517-7000 | Email: gcflaw@outlook.com |


  2. There's no way to give a simple, pat answer to a question like this in the limited space here. It will depend upon the nature of the search - what is it that's being searched? a criminal defendant's email account? a third party's? Is it based on disclosures by the recipients of the email (in which case, the defendant has no expectation of privacy at all, and it's not even a "search"), or upon an attempt to 'hack into' someone's account (which would be a search, and would be illegal if not conducted with a proper warrant)? You need to consult with a criminal defense attorney in private if this is going to be an issue for you.

    Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com


  3. Your question is interesting, but over-broad for the Avvo forum. There have to be websites dedicated to the issue.

    READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I am providing educational instruction only--not legal advice. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.


  4. It may also depend on what email is involved. For instance, and employee may not have a privacy right in email generated on the employer's computer.

    This comment is general in nature and is not intended as legal advice. It does not create an attorney client relationship and obviously is not confidential. You should contact an attorney in your area who can review with you all of the relevant facts and give you specific legal advice.

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