zippypinhead: [...] When seizing property in the possession of a third party pursuant to warrant, does Fed. R. Crim. P. 41(f)(1)© require that a copy of the warrant and receipt be provided to the “owner” of the property after the seizure is completed, in addition to the person from whose premises the property was seized ?And does the result differ when the seized property in the possession of the third party is a stored electronic communication rather than physical property, such as a third party’s papers?

Non-lawyer here. By way of your analogy with FedEx, does this law then enable the government to search a suspect’s letters while in possession of the US Postal Service, without providing the suspect with the warrant after the search?

The issue presented in this case is actually pretty simple: When seizing property in the possession of a third party pursuant to warrant, does Fed. R. Crim. P. 41(f)(1)(C) require that a copy of the warrant and receipt be provided to the “owner” of the property after the seizure is completed, in addition to the person from whose premises the property was seized? And does the result differ when the seized property in the possession of the third party is a stored electronic communication rather than physical property, such as a third party’s papers?

The answer is the same in the cyber-world as it is in the physical world: No. ECPA/SCA muddies up the water only slightly — in that the statute provides a set of procedural and privacy protections for the e-mail subscriber that arguably go beyond the bare requirements of the Fourth Amendment, but that substantively don’t alter the warrant requirement. In short, if there’s no Constitutional requirement to provide a copy of the warrant and a receipt to the “owner” of kiddie porn magazines seized from the FedEx warehouse, there’s also no requirement to provide a warrant/receipt to the “owner” of a stored electronic communication that happens to consist of the exact same contraband in digital form in an ISP’s server. And since determining ownership, custody, etc. of the seized contraband is often a difficult contested issue in both the cyber– and physical worlds, effective “notice” to a person often identified only by an anonymous pseudonym e-mail handle would be more than a little problemmatic.

Although the one thing that sort of bothers me is seeing a certain self-described “bald academic” who ought to know better inaccuractely describe the legal issue as “notice” to the subscriber. No, it’s whether the 41(f)(1)(C) warrant/receipt is required to be provided to the subscriber/owner after the seizure, not whether there’s a “notice” requirement. ECPA/SCA does have various “notice” provisions (e.g., prior or delayed notice required if issuing a subpoena for content), but as the Judge pointed out deep within the bowels of his opinion, that’s not what’s going on here.

Pursuant to previous threads and possible forthcoming regulatory action, I have received nothing of value from anyone associated with this blog for this post that would lead to my gratuitous brown nosing in this matter.