evidence in question, and even (if documentary or electronic evidence was sought) to rummage
through file cabinets and to seize and examine the hard drives of computers or other electronic
devices. That is because the Constitution protects “[t]he right of the people to be secure in their
persons, houses, papers and effects” not absolutely, but only “against unreasonable searches and
seizures,” id. (emphasis added), and strikes the balance between the protection of privacy and the
needs of law enforcement by requiring, in most cases, a warrant supported by a judicial finding
of probable cause before the most intrusive of searches can take place. See, e.g., Riley v.
California, 134 S. Ct. 2473, 2482 (2014).
Congress, of course, is free to impose even stricter requirements on specific types of
searches – and it has occasionally done so, for example in connection with the real-time
interception of communications (as in wiretapping and electronic eavesdropping). See 18 U.S.C.
§ 2518(3)(a) (permitting the approval of wiretap applications only in connection with
investigations of certain enumerated crimes); id. § 2518(3)(c) (requiring that a judge find that
“normal investigative procedures have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous” before a wiretap application can be
approved). But it has not done so for permitting government access to any category of stored
electronic communications, and Microsoft does not challenge the constitutional adequacy of the
protections provided by the Act to those communications. Put another way, Microsoft does not
argue here that, if the emails sought by the government were stored on a server at its
headquarters in Redmond, Washington, there would be any constitutional obstacle to the
government’s acquiring them by the same means that it used in this case. Indeed, as explained
above, the showing made by the government would support a warrant that permitted agents to
forcibly enter those headquarters and seize the server itself.
3
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