NY Co.: Overbreadth in email warrant doesn’t require suppression of all emails; third party doctrine should be revamped for the electronic era

The New York eavesdropping statute only applies to communications in transit, not to emails. Despite the overbreadth of the email warrant, the court won’t suppress all the emails. Those that are suppressed have to be returned. The court argues for revitalization of the third party doctrine in Part 6 of the opinion. People v. Thompson, 2016 N.Y. Misc. LEXIS 471, 2016 NY Slip Op 26045 (N.Y. Co. Feb. 17, 2016):

In determining the remedy for the overbroad warrants in this case, however, the Facebook court’s conclusion that the third-party doctrine negates any Fourth Amendment protection for subscriber communications seized from an ISP is controlling. The third-party doctrine is based on a long line of clear legal authority, most significantly the United States Supreme Court’s decision in United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). The doctrine has also been subject to significant criticism, however. As Justice Sotomayor argued in her concurring opinion in United States v. Jones, 132 S.Ct. 945, 957, 181 L. Ed. 2d 911 (2012) “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. (citations omitted). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

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