Investigators relied on 18 U.S.C. § 2703(f) to compel Yahoo! to copy and preserve Mr. Basey’s emails and other account data—without getting a warrant—for nine months. This prolonged, warrantless seizure is typical of a growing nationwide practice: one where investigators regularly issue secret demands to preserve individuals’ private account data just in case they decide to return with a court order later. Based on public transparency reports, federal and state investigators rely on section 2703(f) to copy and preserve private electronic data tens or hundreds of thousands of times each year. None of these demands require any showing of suspicion, need, or exigency.
United States v. Basey
The copying and preservation of Mr. Basey’s emails and account data violated the Fourth Amendment. When Yahoo! secretly duplicated Mr. Basey’s private data at the government’s direction, it was acting as a government agent—and thus this seizure of his information was subject to Fourth Amendment constraints.
In the absence of a warrant, copying and preserving these messages was an unconstitutional seizure of private information. A warrantless seizure can be justified by exigent circumstances if the government has good cause to preserve the data for a short while to seek a warrant. But if any exigency existed in this case—and none is apparent from the record—it dissipated over the nine months that the government delayed before applying for a warrant. Moreover, section 2703(f) is problematic because in most cases investigators appear to be using it to unconstitutionally seize private communications.
The statute does not require probable cause, a risk that evidence will be destroyed, or that investigators promptly submit a court application to obtain the data they have preserved. While there may well be cases where the short-term, warrantless copying and preservation of private data is reasonable, this case is not one of them. The court should hold that the government’s protracted, warrantless seizure of Mr. Basey’s private data violated the Fourth Amendment.
February 19, 2019
United States Court of Appeals for the Ninth Circuit