This document summarizes the key processes and standards for criminal investigations that involve electronic evidence collection under the Fourth Amendment and relevant statutes. It describes the types of court orders and standards required for wiretaps, stored communications, pen registers, and national security letters. It also explains the differences between an electronic communications service, remote computing service, and voluntary disclosure. Case law precedents like Perrine and Comprehensive Drug Testing are summarized in terms of their impact on these investigation standards.

1. Process in Criminal Investigations
Prof. David Opderbeck
Seton Hall University Law School
© 2016-2019 David W. Opderbeck
Creative Commons Attribution / Share-Alike

2. Background
• Fourth Amendment: “The right of the people to
be secure in their persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing
the place to be searched, and the persons or
things to be seized.”
• Fed. R. Crim. Pro. 41

3. Type Information Standard Limitations
Wiretap Communications Content in Transit Super Warrant Probable cause + normal investigative
procedures have failed or will likely fail
or are too dangerous
ECPA Stored Communications Identity and Billing Records; Transaction Logs; Stored
Communications Content Information
Subpoena; Subpoena
with Prior Notice;
Court Order without
Prior Notice; Court
Order with Prior
Notice; Warrant
See Next Slides
Pen Register / Trap and Trace Non-content routing information captured in real time Court Order The information likely to be obtained is
relevant to an ongoing criminal
investigation being conducted by
requesting agency; no notice to
subscriber
NSLs Subscriber information and toll billing records
information, or electronic communication transactional
records
FBI Issued Letter Relevant to an authorized investigation
to protect against international
terrorism or clandestine intelligence
activities; no disclosure to subscriber
but procedure for ISP to challenge

4. https://www.justice.gov/sites/
default/files/criminal-
ccips/legacy/2015/01/14/ssma
nual2009.pdf

5. Stored Communications Act
• Basic Distinctions
• Provider:
• Electronic Communications Service (ECS)
• “any service which provides to users thereof the ability to send
or receive wire or electronic communications”
• Remote Computing Service (RCS)
• “the provision of computer storage or processing services by
means of an electronic communications system”
• Neither

6. Stored Communications Act
• Basic Distinctions
• Provider:
• Electronic Communications Service (ECS)
• “any service which provides to users thereof the ability to send
or receive wire or electronic communications”
• Remote Computing Service (RCS)
• “the provision of computer storage or processing services by
means of an electronic communications system”
• Neither

7. Stored Communications Act
• Basic Distinctions
• Process
• Voluntary Disclosure
• Search Warrant
• § 2703(d) Order (with our without prior notice)
• Subpoena (with or without prior notice)

8. Subpoena Without Notice
SRC = DOJ CCIPS Manual

9. Subpoena With Notice
SRC = DOJ CCIPS Manual

10. Subpoena With Notice
SRC = DOJ CCIPS Manual
Category (3): Who is the provider of a “remote computing service” (RCS)?
• Under the SCA, contents of communications in “electronic storage” for les than
180 days can only be obtained with a warrant
• “Electronic storage” is a term defined under the statute: “temporary,
intermediate storage” or “for purposes of backup”
• Most Circuits interpret this to mean a surrogate for a wiretap, so that an ISP that
stores copies of sent and opened emails is an RCS and the information is not in
“electronic storage”
• 9th Circuit has a different rule and requires a warrant for this information

11. § 2703(d) Order Without Notice
SRC = DOJ CCIPS Manual

12. § 2703(d) Order Without Notice
SRC = DOJ CCIPS Manual

13. § 2703(d) Order Without Notice
SRC = DOJ CCIPS Manual

14. § 2703(d) Order With Notice
SRC = DOJ CCIPS Manual

15. § 2703(d) Order With Notice
SRC = DOJ CCIPS Manual

16. Search Warrant
SRC = DOJ CCIPS Manual

17. Search Warrant
• Why a warrant under § 2703 rather than an
ordinary warrant under Fed. R. Crim. P. 41?
• Can be issued for records held in another district
• Can authorize production of all email from specified
accounts, which law enforcement can review to
identify specific information within the scope of the
warrant

18. Voluntary Disclosure
SRC = DOJ CCIPS Manual
Example: A private consulting company that stores emails on its own
servers (Andersen Consulting LLP v. UOP, 991 F. Supp. 1041 (N.D. Ill.
1998))

19. Voluntary Disclosure
SRC = DOJ CCIPS Manual

20. Voluntary Disclosure
SRC = DOJ CCIPS Manual
Voluntary Disclosure, Non-Content

21. SRC = DOJ CCIPS Manual

22. Perrine Case
• Level of detail provided in application for § 2703
Order was sufficient even though a specific record
relating to an IP address was missing
• Constitutional challenge: “[e]very federal court to
address this issue has held that subscriber
information provided to an internet provider is
not protected by the Fourth Amendment’s privacy
expectation”

23. Comprehensive Drug Testing Case
• Facts / Background
• BALCO baseball steroids investigation, grand jury
subpoena and warrants for records and samples at a
testing company
• Motions to quash, eventual appeal to Ninth Circuit en
banc

24. Comprehensive Drug Testing Case
• “The pressing need of law enforcement for broad
authorization to examine electronic records . . .
creates a serious risk that every warrant for
electronic information will become, in effect, a
general warrant, rendering the Fourth
Amendment irrelevant.”
• “Seizure of, for example, Google’s email servers to look for a few
incriminating messages could jeopardize the privacy of millions.”

25. Comprehensive Drug Testing Case
• Kozinkski concurrence: details procedures courts
should require in warrants and subpoenas for
computer information
• Bea concurring in part: Kozinski’s procedures are
advisory
• Callahan concurring in part: Kozinski’s procedures
are not joined by a majority of the en banc court
and aren’t binding; further they are overbroad
and unreasonably restrictive