criminal procedure; electronically stored information; search warrants


Electronic communication services, from email, to social media, tomessaging applications, have not only dramatically changed daily life but have also had a profound impact on criminal investigations and procedure.The often large volume of electronically stored information has led to a two-step process for search warrant execution, codified in Federal Criminal Procedure Rule 41. When conducting a search pursuant to Rule 41, law enforcement often retains both responsive items—materials that fall within the scope of the warrant—and nonresponsive materials—intermingled items that can be searched, but ultimately exceed the scope of the warrant. This possession of nonresponsive material creates a tension between the account holder’s privacy interests and the government’s ability to conduct an effective search.Courts and scholars have implemented and proposed a range of approaches for search warrant execution inlight of concerns about sweeping general searches and the practicalities of searching electronically stored information. This Note examines these approaches to regulate search warrant execution procedure in the context of stored electronic communications. This Note also discusses the strengths and shortcomings of these various mechanisms and concludes that Rule 41 should be amended to provide standards for the retention and use of nonresponsive material.