As reported in the Wall Street Journal, at least two federal judges question the constitutionality of the two step process utilized by the United States Department of Justice to review e-mail communications in criminal investigations. In step one, the Justice Department obtains a warrant for all email messages connected to an account believed to contain evidence related to an investigation. In step two, once the messages are obtained, the Department performs searches on the entire message collection to identify relevant messages. When completed, irrelevant e-mail messages from the account are discarded.
However, Magistrate Judges John Facciola in Washington, D.C., and David Waxse in Kansas City, Kan., believe the first step may run afoul of the Constitution is because “it places too much irrelevant, private information with government investigators.” The article goes on to note that the judges have rejected or modified a number of Justice Department warrant applications over the past year as being too far reaching. The article is here.