Evaluating the Particularity of Subpoenas for Digital Evidence

Evaluating the Particularity of Subpoenas for Digital Evidence

Law enforcement agencies are increasingly relying on digital evidence to investigate crimes in the modern era. However, the use of digital evidence raises complex legal issues regarding privacy and the scope of subpoenas. This article examines the debate over how to balance law enforcement needs with civil liberties when issuing subpoenas for digital information.

The Rise of Digital Evidence

With the proliferation of smartphones, social media, cloud storage and other technologies, digital evidence such as text messages, emails, photos, search histories, and location data has become ubiquitous in criminal cases. Studies show that digital evidence is now involved in most investigations.

This has created tremendous opportunities for law enforcement to access information that can help reconstruct events and identify perpetrators. However, it also poses new challenges for prosecutors in learning how to gather and utilize digital evidence effectively.

Overbroad Subpoenas

A key issue is that subpoenas for digital evidence often demand an enormous breadth of information from tech companies like Google, Facebook and Apple.

For instance, prosecutors sometimes issue subpoenas seeking “any and all records” related to a particular account. This could encompass years’ worth of highly personal information.

Defense attorneys argue that such broad subpoenas violate the particularity requirement of the Fourth Amendment, which states that warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.”

The Stored Communications Act

However, prosecutors contend that subpoenas for digital evidence are governed by the Stored Communications Act (SCA), not the Fourth Amendment’s warrant requirements.

The SCA allows the government to compel tech companies to hand over customer records with a subpoena, which has a lower legal threshold than a warrant.

Courts have been divided on whether the SCA provides sufficient privacy protections regarding digital evidence.

Notable Cases

In United States v. Warshak (2010), the Sixth Circuit Court of Appeals ruled that the SCA’s subpoena provisions violate the Fourth Amendment for emails, given their “highly personal” nature. However, this ruling only applies within the Sixth Circuit’s jurisdiction.

In contrast, in SEC v. Graham (2014), the Ninth Circuit upheld a subpoena under the SCA for a wide range of digital documents. But it cautioned that requests must avoid seeking information that is “unreasonably voluminous.”

Particularity Requirement

These cases illustrate the need for limits when issuing subpoenas for digital evidence. While law enforcement has legitimate needs, courts are increasingly recognizing that privacy rights must be balanced against those needs.

One solution is to impose a heightened particularity requirement for digital subpoenas. This would compel prosecutors to narrowly tailor requests to specific time periods, services, communication partners and other factors.

Defense attorneys argue this would prevent “fishing expeditions” through people’s digital lives while allowing relevant evidence to be obtained.

Reasonable Compromise

A reasonable compromise could require prosecutors to meet a standard such as “reasonable particularity” when subpoenaing digital records. This is less strict than a warrant, but goes beyond the SCA’s minimal requirements.

With this approach, subpoenas that clearly identify targeted information over a reasonable timeframe would be valid. But open-ended demands for “any and all records” would not.


Digital evidence is a vital tool for law enforcement, but it also contains highly sensitive details about people’s lives. Courts need to strike the right balance between these competing interests.

Imposing a heightened particularity standard for digital subpoenas would allow police to access relevant evidence for investigations, while also placing reasonable limits on government power. This would help safeguard Fourth Amendment protections in the digital age.