21 Jan 24

Federal Subpoenas for Digital Evidence: What the Government Can Obtain

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Last Updated on: 21st January 2024, 10:46 pm

Federal Subpoenas for Digital Evidence: What the Government Can Obtain

When the government is building a case, they often need access to digital evidence like emails, text messages, photos, social media posts, and other electronic information. To legally obtain this type of private information, federal agencies can issue subpoenas directly to tech companies and internet service providers.So what exactly can the government get with a federal subpoena for digital evidence? Here’s an overview of how federal subpoenas work and what information they enable the government to collect from tech companies and ISPs.

What is a Federal Subpoena?

A federal subpoena is a legal demand for information, documents, or testimony that can be used as evidence in a federal investigation or criminal case.Federal subpoenas are issued directly by federal agencies like the FBI, IRS, SEC, and Department of Justice. They don’t need court approval. Instead, federal agents can issue subpoenas on their own authority while building cases.Once a tech company or ISP receives a federal subpoena, they are legally required to hand over the requested information to the government. If they fail to comply, they can face steep fines or even obstruction charges.This makes federal subpoenas a very powerful investigative tool for gathering electronic evidence stored by third-party service providers.

What Digital Evidence Can Be Obtained?

The exact wording of a federal subpoena defines what evidence the government is allowed to collect. But in general, here are some examples of digital information that federal subpoenas can enable agencies to obtain:

  • Email content – The full emails stored in a specified account, including attachments.
  • Log-in records – Information on user log-ins, failed log-in attempts, password changes etc.
  • Web browsing history – Records of websites visited and searches conducted.
  • Stored files – Photos, videos, documents etc. stored in cloud accounts.
  • IP address logs – Records linking online activity to specific devices and internet connections.
  • Metadata – Hidden data providing context like geotags or access times.
  • Social media – Private posts, messages, connections and more.

Federal agencies can request quite expansive access to cloud data via subpoenas. The scope depends on what they are investigating and the specifics of each case.In some instances, agencies like the IRS can issue John Doe summons allowing them to obtain groups of unnamed taxpayers’ data from tech companies to identify noncompliance.

Limits on Digital Evidence Collection

There are some limits federal agencies face when gathering electronic evidence with subpoenas:

  • Relevance – The requested data has to be relevant to the investigation. They can’t embark on “fishing expeditions” for information without a clear nexus.
  • Time range – Subpoenas often specify a time frame for the information sought, such as email records from the last 3 years.
  • Ongoing surveillance – Tech companies are not required to proactively monitor users or provide real-time access to accounts. Subpoenas relate to data tech companies have already collected and stored.
  • User notice – In some cases, tech companies inform users when their account data has been subpoenaed by the government. But this is not universally required.

In short – federal subpoenas provide robust access to users’ digital data, but agencies can’t necessarily obtain anything and everything. The information sought has to clearly pertain to matters under investigation.

How Tech Companies Respond

When Apple, Google, Microsoft or any other tech provider receives a federal subpoena, they have little choice but to comply. These companies spend millions each year responding to government data requests.According to Reddit’s transparency reports, federal subpoenas made up 25% of all U.S. data requests received in 2020. Failure to comply can spur massive contempt of court fines until the company hands over subpoenaed account contents.That said, some tech companies push back when they receive federal subpoenas they believe to be invalid or abusive. This can prompt negotiations with federal agencies to narrow the scope.For the most part though, tech companies err on the side of complying with properly formatted federal subpoenas requesting user information. They provide responsive data in a timely manner, allowing federal agencies to access expansive digital evidence.

Getting Help Responding to Government Requests

As you can see, federal agents have broad capabilities to gather electronic evidence through subpoenas directly issued to tech and internet companies.If you receive notice that your data has been subpoenaed, or if you wish to challenge improper government access to your online accounts, an attorney experienced with federal investigations can help. They understand the rules agencies must follow, and can negotiate restrictions when appropriate.Now you know the basics of federal subpoenas for digital evidence – what they enable access to, what limits agencies face, and how tech companies generally respond. This overview equips you to better understand your rights if the government subpoenas your private data from ISPs or tech providers.