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Does law enforcement need a warrant to search e-mail?

The requirement for law enforcement to get a warrant before searching someone's person or property is still an utterly basic building block of American criminal law. To be sure, there are certain exceptions that allow for a warrantless search, such as a search incident to arrest

But those exceptions do not change the fact that a search warrant is generally needed. When it comes to electronic communications, there are also applicable federal laws. The most important of these laws is the Electronic Communications Privacy Act (ECPA) of 1986.

The ECPA law regulates access to Americans' online communications. When the law was written in the mid 1980s, however, e-mail was still in its infancy. Only a small community of scientists and university researchers used it regularly.

A generation later, e-mail is virtually everywhere. Millions of people use free e-mail services daily and keep extremely sensitive personal information there. The 1986 electronic privacy simply did not envision such a world.

That is why Congress is considering amending the law to restrict the ability of law enforcement to gain warrantless access to e-mail. Such an amendment could also restrict access to private Facebook accounts and other personal data stored online.

The goal, said Sen. Patrick Leahy, is to make sure that digital privacy laws keep up with ever-evolving technological change. Sen. Leahy is chairman of the Senate Judiciary Committee, which held a hearing on the issue a few weeks ago.

It remains to be seen whether the full Congress will act to clarify the law on law enforcement access to private electronic communications. The U.S Justice Department has already asserted that requiring a search warrant to get archived e-mail would adversely affect criminal investigations. But the issue is far from settled.

Source: "Senate panel to cops: You need search warrants to e-mail," CNETm Declan McCullagh, 11-29-12

Our firm handles situations similar to those discussed in this post. To learn more about our practice, please visit our St. Louis criminal defense page.

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