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United States v. Bach

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Case History | EPIC's Role | Legal Materials | Other Materials

Circuit Court Approves Faxed Warrants. The Eighth Circuit ruled (PDF) today that service of a warrant on an ISP by fax complies with the "reasonableness" requirements of the Fourth Amendment. EPIC filed an amicus brief (PDF) in the case, arguing that police officer presence is required during the service of a warrant under such circumstances. EPIC argues that the service of a search warrant by fax machine doesn't adequately safeguard Fourth Amendment guarantee of a "reasonable" search, because U.S. search and seizure law has mandated officer presence at the service of a warrant since the 1700s. (Nov. 18)

Case History

The Pew Internet and American Life Project has published a report indicating that roughly 111 million Americans have gone online. The report provided evidence that Americans are living significant portions of their lives online, stating 23% of people with internet access have banked online and 61% have looked for health or medical information. While new digital forms of communication now offer a broad range of conveniences, they have also yielded new opportunities for abuse - both by private citizens and by law enforcement.

In October of 2000, police officers in Minnesota began investigating Dale Robert Bach for potential child pornography crimes. As part of the investigation, an officer obtained a search warrant to be served upon Yahoo, an internet service provider (ISP) in California. Minnesota requires that an officer be present at the service of a search warrant. Rather than adhering to the requirements provided by Minnesota law, the officer investigating Mr. Bach served the search warrant to Yahoo by fax. Upon receiving the fax, Yahoo employees retrieved all data from Mr. Bach's account, including deleted email messages. Yahoo then mailed the disk to Minnesota, where the data became evidence in Bach's federal criminal prosecution.

At trial, Bach moved to have the evidence suppressed, citing both violations of  the Minnesota statute, as well as violations of a federal statute. The district court held that the evidence should be suppressed as the search was illegal under both federal and state laws. The government appealed to the circuit court.

On October 10, 2002, the Eighth Circuit held oral arguments in United States v. Bach, the first Circuit case examining how a case examining how the Fourth Amendment protects stored e-mail and other files held by Internet Service Providers (ISPs). The district court suppressed the evidence, stating that the law enforcement practice of faxing search warrants for the contents of e-mails to ISPs violated the Constitution because the Fourth Amendment required the government to be physically present to execute the warrant. The government appealed to the circuit court. At oral argument, the government's attorney urged the court to resolve the question on narrow reasonableness grounds, without addressing the broader issue of whether an Internet user has an expectation of privacy in remotely stored files held by an ISP.

The Eighth Circuit ruled that service of a warrant on an ISP by fax complies with the "reasonableness" requirements of the Fourth Amendment. The court resolved the case on the narrow ground that the government's actions were "reasonable," without deciding the broader issue of whether an Internet user has a Fourth Amendment expectation of privacy in their e-mail. In January 2003, the Circuit judges narrowly rejected the defendant's petition for reconsideration, voting 5 to 4 against the motion.

EPIC's Role

EPIC filed an amicus brief (PDF) in the Eighth Circuit arguing that police officer presence is required during the service of a warrant on an ISP. EPIC argued that the service of a search warrant by fax machine doesn't adequately safeguard Fourth Amendment guarantee of a "reasonable" search. EPIC's brief detailed the history of U.S. search and seizure law, which has mandated officer presence at the service of a warrant since the 1700s.

After the court released its November ruling , EPIC filed a response (PDF) to a petition for reconsideration, urging the Circuit to reconsider its holding that service of a warrant on an ISP by fax complies with the"reasonableness" requirements of the Fourth Amendment. EPIC's response argued that the November opinion didn't adequately consider the distinction between service of a warrant and execution of a warrant.

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Last Updated: January 8, 2003
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