Last Friday, U.S. Magistrate Judge Gabriel Gorenstein issued a controversial ruling granting police a warrant to search the entirety of a suspect’s Gmail inbox for incriminating evidence. On its face, the judgment might not seem particularly startling. But if more courts adopt Gorenstein’s dangerous logic, we may soon see an unprecedented erosion in digital privacy.
Here’s the thing about virtual searches: They aren’t all that different from physical searches. When a magistrate issues a search warrant, she specifies what items can be searched for and what areas can be searched. There’s no real reason the same shouldn’t be true when police want to search a computer or an inbox. Magistrates could, in theory, provide law enforcement with certain keywords names to search or folders to scour. Doing so would protect an individual’s entire cache of documents, images, and data from being invaded—while allowing police to zero in on the evidence they hope to find.
But that isn’t what Gorenstein, a federal judge, did in this case, which stems from a money-laundering investigation. Instead, Gorenstein gave police unrestricted access to the suspect’s emails, specifying no specific parameters for their search. In doing so, Gorenstein furthered an alarming trend: Magistrate judges have begun treating computers as single physical entities—like a file cabinet—and given police carte blanche to search through the whole thing. The problem here is obvious. A file cabinet, no matter how big, has a limited number of files. But a hard drive might have thousands upon thousands of files, each of which could contain information of a trove of highly personal information. Inboxes do, too. Hard drives and inboxes, then, aren’t really like a file cabinet—they’re like a whole house filled with information tucked in every nook and cranny.
Most magistrates would be reluctant to grant a warrant that allowed police to search every single space in every room of a house. In fact, such a warrant would tread dangerously close to the “general warrants”—an unlimited license to search and seize—that the Framers banished with the Fourth Amendment. So why should a digital search be any different? In defending broad virtual warrants, judges usually harp on the fact that computer and inboxes have vast quantities of scattered, often hidden data. (Gorenstein noted that few criminals log their illicit activities in a folder titled “drug records.”) As a result, these judges argue, police must be able to search every digital alcove they can find. The invoice from your last heroin sale might be tucked in a folder titled “Grandma’s 80th Birthday Party.”
But this is deeply faulty logic. First, physical items can be concealed, too; that doesn’t necessarily give police authority to rifle through every single drawer in a house. Second, although computers hold more potentially incriminating material than a file cabinet might, they’re also easier to search. When a judge issues a warrant to search a hard drive or inbox, she might limit it to data accessed on certain dates or containing certain searchable key words. Or she might permit officers to examine folders but not their contents, and request another warrant to search a suspicious folder. (Courts have attempted these approaches, to moderate success.)
Ultimately, the Supreme Court will surely have to step in to draw the contours of our rights of digital privacy. And when the court does rule, don’t expect it to follow Gorenstein’s logic. As my colleague Dahlia Lithwick recently pointed out, the justices really are trying to apply the Fourth Amendment reasonably and consistently to our more personal and complex gadgets. In the last two years, they’ve limited the scope of both GPS and cellphone searches. Reviving the much-reviled general warrant for the digital age, as Gorenstein hopes to do, probably won’t fly with this court.