This paper proposes six strategies for prosecutors in addressing objections from electronic service providers who resist search warrants for data they have collected.
Law enforcement’s demand for and reliance on electronic service providers’ data continues to increase. Responding to concerns raised by privacy advocates, such providers have sought to make their data more difficult to access by law enforcement investigators. Six strategies are proposed for prosecutors who must address this issue. First, know what kind of data will be searched, why it is needed, and the legal grounds for obtaining access to it. Second, educate judges, service providers, and investigators about the nature and value of the data. Third, customize the “boilerplates,” which pertain to the use of traditional rationales and practices for obtaining evidence related to crimes. Fourth, assume good faith when there is a delay in providing access to the data, but handle delays and denials expeditiously. Fifth, plan the budget to fund data processing, which is often charged by major data holders. Sixth, seek notification of unreturned responsive records to ensure the data content matches the user name on both the warrant and the affidavit, and that the data responder has provided all that is included in the search warrant.