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Accused of a white collar crime? Be wary of those emails

White collar criminal investigators may be allowed to obtain emails from a web service provider without a warrant. Read on to learn more.

In New Jersey, the United States Attorney’s Office for the District of New Jersey is the governmental office charged with prosecuting federal white collar criminal statutes in the state.

There are many factors involved in a white collar crime, such as the amount of money at issue, the circumstances by which the disputed money was obtained, and the number of victims of the alleged scheme. In order to compile enough evidence for those factors, investigators may monitor a suspect for months before formally bringing charges for a white collar crime . That surveillance work may include monitoring digital communications.

Warrant requirements for electronic communications

Readers may assume that any such surveillance would require a warrant. In the case of a phone tap or a search of hard copy office files, for example, New Jersey investigators generally need a warrant. Readers may assume that a warrant would similarly be required for any email or electronically stored documents. Unfortunately, such privacy expectations may be rudely disappointed in the case of electronic communications that are at least six months old.

Specifically, the Electronic Communications Privacy Act of 1986 is the federal law that attempts to balance individual privacy expectations against law enforcement needs. It amended two other federal laws, the Stored Communications Act and the federal Wiretap Statute. Under current interpretations of the ECPA, the government may be allowed to access messages and attachments over 180 days old without a warrant.

Yet technology has changed since the passing of the ECPA in 1986. GPS technology is readily available on many cellphones, and many technology platforms now offer cloud-based storage. Readers may question whether such location data and online documents that are at least six months old should be subject to a warrantless search .

A split in authority

Notably, even interpretations of the ECPA are split. The Sixth Circuit Court of Appeals determined in a 2010 decision that a portion of the ECPA was unconstitutional. Technically, that precedent is only binding within the Sixth Circuit, but many technology companies across the company have relied on it as justification for requiring a search warrant when confronted with government requests for searches of their customers’ content.

Given that policy divide, federal lawmakers may have to update the ECPA. One Congressman has characterized portions of the ECAP as worse than the domestic surveillance program used by the National Security Agency to collect metadata from phone calls. One proposed reform is to require a warrant before viewing any electronic communications, with the possible exception of a few enumerated emergency situations. In fact, there are bipartisan bills to this effect in both the U.S. House of Representatives and the U.S. Senate.

As the law in this area continues to change, anyone who has been formally charged or believes that he or she is the target of a white collar criminal investigation should contact an experienced criminal defense attorney. An attorney can work to limit a criminal defendant’s potential exposure.

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