Judge Gives Police Total Access to Suspect’s Inbox

Future Tense
The Citizen's Guide to the Future
July 21 2014 4:32 PM

Judge Gives Police Total Access to Suspect’s Inbox

53026917EZ008_MLB_Draft
Not a computer.

Photo by Ezra Shaw/Getty Images

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.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

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.

Advertisement

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.

Future Tense is a partnership of SlateNew America, and Arizona State University.

TODAY IN SLATE

Technocracy

Forget Oculus Rift

This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.

The Congressional Republican Digging Through Scientists’ Grant Proposals

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

The GOP Won’t Win Any Black Votes With Its New “Willie Horton” Ad

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?

Politics

Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

These Companies in Japan Are More Than 1,000 Years Old

  News & Politics
The World
Oct. 21 2014 11:40 AM The U.S. Has Spent $7 Billion Fighting the War on Drugs in Afghanistan. It Hasn’t Worked. 
  Business
Moneybox
Oct. 21 2014 1:12 PM The Global Millionaires Club Is Booming and Losing Its Exclusivity
  Life
Lexicon Valley
Oct. 21 2014 1:36 PM Single Quotes or Double Quotes? It's Really Quite Simple.
  Double X
The XX Factor
Oct. 21 2014 1:12 PM George Tiller's Murderer Threatens Another Abortion Doctor, Claims Right of Free Speech
  Slate Plus
Behind the Scenes
Oct. 21 2014 1:02 PM Where Are Slate Plus Members From? This Weird Cartogram Explains. A weird-looking cartogram of Slate Plus memberships by state.
  Arts
Behold
Oct. 21 2014 12:05 PM Same-Sex Couples at Home With Themselves in 1980s America
  Technology
Technology
Oct. 21 2014 10:43 AM Social Networking Didn’t Start at Harvard It really began at a girls’ reform school.
  Health & Science
Climate Desk
Oct. 21 2014 11:53 AM Taking Research for Granted Texas Republican Lamar Smith continues his crusade against independence in science.
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.