Judge Royce Lamberth’s decision is brief, at only 8 pages total.  But there’s really no particular reason for it to be longer, since there was only one side to the argument, the government, and he couldn’t discuss the facts since they’re still under wraps.  You see, the issue was whether the government was required to provide notification, albeit belated, of the seizure of emails in a Foreign Corrupt Practices Act investigation.

It’s not surprising that the government won the point, particularly since they were arguing against an empty table.  The decision wasn’t a novel one.  But the decision reflects, again, a major failing of the Electronic Communications Privacy Act.  From Mike Scarcella at BLT :

What little is known about the dispute is contained in Lamberth’s eight-page opinion. The name of the e-mail account holder is redacted. There’s no indication about what the government is looking for and why it wants it.

Lamberth was asked to weigh in on whether a particular provision of the federal rules of criminal procedure applies to the Electronic Communications Privacy Act. Rule 41 requires an officer to give a copy of the warrant and a property receipt to the person from whom the property was taken. In the alternative, an officer is permitted to leave a copy of the warrant and receipt at the place where the officer took the property.

The government, Lamberth said, is not required under the act to give notice to the subscriber of an e-mail account that the government searched. Prosecutors satisfy their obligation when they leave a copy of the warrant with a third-party Internet service provider—in this case, Google.

As if Google cares.  For all one can tell from the decision, the email in question could be yours.  It could be mine.  We won’t know.  We may never know.  But as long as Google knows, then all is well with the world.

The decision falls into line with the mistaken approach of treating the digital world as if it was just like bootleggers of the nearly 100 years ago.  Emails, those dashed-off missives that are so quick, easy and expeditious, which we think are between us and our recipients, end up existing in multiple copies on multiple servers at multiple locations viewable by multiple people.  That’s just the way email rolls, even though it has no particular meaning to the sender or receiver.  Why bother our pretty heads with the technical details of electronic communications when all we want to do is send a stinking email?

But the many copies of our silly little email reside in the hands of others for as long as they choose to hold on to them.  The government doesn’t seek to take a peak at our copy of the email.  If they did, then they would have to let us know about it.  But they don’t, and wouldn’t, because there is no reason for the government to do so.  Why bother with us when they can go straight to Google and get Google’s copy?  What, you didn’t BCC Google when you hit send?  No matter, they get it anyway.

There’s a well-worn path from the US Attorney to Google, where the government just trots over and hands a piece of paper to the Google guy in charge of giving up their copy of your email.  The Google guy says thanks and gives your email up.  The law has been met.  You know nothing about nothing, and everybody is happy.

There may well be sound law enforcement reasons for the government to keep its email grab on the QT at the time it seeks its warrant.  But with other warrants seeking real world physical things, we learn of it when the warrant is executed.   Not here.  When the warrant is handed over to the Google guy, the government has completed all notification required.  Neither then, nor later, nor ever, is the government required to let the emailer know that his communications were seized.

These warrants have a box, which was mistakenly checked off by the Magistrate Judge in this case, and which gave rise to the need for Judge Lamberth’s intervention, that would require the government to provide notice, eventually, to the email subscriber.  Delayed notice is better than no notice at all, though not much.

The bottom line is that there is no requirement that the government notify the true party in interest that a warrant was ever issued or a seizure conducted, as notification is fully satisfied by providing it to the third party, wholly disinterested in what the government is doing. 

Google knows that your email was seized?  Close enough.  Good enough. Notification has been achieved.