The government’s email search applications are overbroad and don’t sufficiently protect the privacy rights of the account holders. The government, however, can limit the applications and submit them again. In the Matter of the Search of Information Associated with Fifteen Email Addresses, 2017 U.S. Dist. LEXIS 117354 (M.D. Ala. July 14, 2017):
Furthermore, apart from the Government’s own temporal limitation, the actual probable cause articulated with respect to each subject email address does not support the comprehensive disclosure sought by the Government. It is important to note at this juncture that, with fifteen different email accounts at issue, the Government’s showing of probable cause naturally falls along a continuum of strength depending upon the extent of the involvement of each account. Each warrant application broadly describes the identity theft scheme and then describes some communications to or from the subject email account indicating that the email account was used to further the scheme. Some email accounts appear extensively involved. Others appear much less involved. Indeed, one email account is described only as having received two emails and sent one email within a five-minute span one morning in February of 2017. See Ex. 7. Do three possibly incriminating emails spaced over five minutes one morning in 2017, supposedly in furtherance of an identity theft scheme beginning in 2015, justify the wholesale disclosure and unfettered inspection and retention of every email ever sent or received by that email account, no matter how many years prior to 2017 or 2015 such emails might have originated? If the Government can make the case that such overseizure is needed—not just desired, but needed—for the promotion of its interest in investigating a criminal scheme beginning in 2015, then the application before the court does not make it. Thus, it seems to the undersigned that, at this time, a reasonable balancing of the competing interests involved would permit the Government to search email content in closer temporal proximity to both the alleged criminal activity and, in particular, the email transmissions that the Government relies upon as establishing probable cause.