E.D.N.Y.: Def agrees that govt can have his emails, so Rule 41 SW isn’t appropriate; use consent or other court order instead

Because the indicted and debriefed defendant freely consents to disclosure of his email account, the request for a Rule 41 search warrant for it is therefore denied. The government can get it by subpoena or other court order. In the Matter of the Search of Information Associated with [Redacted Email Address] That Is Stored at Premises Controlled by [Redacted Service Provider], 2016 U.S. Dist. LEXIS 163612 (E.D.N.Y. Nov. 28, 2016):

The Affidavit reveals that the Defendant has consented to allow the government to access the contents of the emails in the pertinent account, and therefore plainly has notice of the request. As a result, the pertinent provision of the SCA explicitly authorizes the government to secure the contents it seeks by means of a subpoena or a court order pursuant to subsection (d) of Section 2703. Id. § 2703(b)(1). The statute does not authorize using the Rule 41 warrant procedure in such circumstances; Congress has seen fit to provide for resort to the warrant procedure only in those circumstances in which the government seeks to proceed without notice to the subscriber. Compare id. § 2703(b)(1)(B), with id. § 2703(b)(1)(A). I assume that Congress understood what it was doing when it wrote the statute that way, and indeed such a structure makes sense: the distinction promotes judicial economy by imposing the burdens attendant to the warrant procedure (on both the executive and judicial branches) only in those instances in which it is necessary to preserve the secrecy of the government’s investigation from the service subscriber whose communications the government seeks to access. No such necessity exists here; with the Defendant’s consent, the government can secure the information it wants in the form it prefers without resort to the warrant process simply by issuing a grand jury or trial subpoena. See id. § 2703(b)(1)(A).

The government’s request for a warrant compelling the disclosure of the Defendant’s non-content account records is permissible under the SCA, notwithstanding the Defendant’s consent to the disclosure of such records. The pertinent statutory provision allows for disclosure based on either. See id. § 2703(c)(1)(A), (C). The problem is not that issuing a warrant contravenes the statute; the problem is that doing so will do nothing to alter the legal rights and obligations of any person or entity. Because the government has secured the Defendant’s consent, it already has the right to access the Defendant’s account records — and the Provider has a corresponding legal obligation to disclose them. Id. § 2703(c)(1)(C). ‘”Federal courts are without power to decide questions that cannot affect the rights of litigants before them.'” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971)); Pitkin Supermarket, Inc. v. United States, 2016 U.S. Dist. LEXIS 161540, 2016 WL 6879254, at *4 (E.D.N.Y. Nov. 21, 2016) (quoting same); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (holding that redressability is an element of the “irreducible constitutional minimum of standing”). Accordingly, deciding whether the government has established probable cause to believe that the Defendant’s email account records will constitute evidence, fruits and instrumentalities of the Subject Offenses will not affect the government’s right to compel the Provider to disclose those records. As a result, notwithstanding the SCA’s applicability to a broad set of circumstances including those of this case, this court lacks the constitutional authority to determine the question of probable cause presented by the government’s application.

For the reasons set forth above, I deny the government’s application for a warrant and an order of disclosure pursuant to the Stored Communications Act. Notwithstanding that denial, it is clear that the government has sufficient authority to take unilateral action, in the form of a subpoena for copies of email communications and a request for disclosure of other records based on the subscriber’s consent, to compel the relevant service provider to disclose the evidence it seeks.

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