Legal Briefs

Rindfleisch v. Wisconsin

By Lindsay C. Harrison, Julia M. Carpenter, Matthew E. Price, Elizabeth C. Bullock, & Ilya Shapiro
July 13, 2015

When Kelly Rindfleisch became a policy analyst for Scott Walker, and then his deputy chief of staff, she didn’t expect all of her personal emails to be the subject of a search into the criminal investigation of another person, but that’s Wisconsin politics for you. In 2010, state officials opened a “John Doe” investigation (essentially Wisconsin’s version of a grand jury inquiry) into another Walker staffer, then-Chief of Staff Tim Russell. In their investigation, law enforcement sought and obtained a warrant for Google and Yahoo to turn over all ~16,000 emails held on Rindfleisch’s personal email account in order to find possibly incriminating emails sent between her and Russell—no narrowing, minimization, key-word searching, or independent third-party review required. Through their fishing expedition, the prosecution was able to find enough evidence to support a charge against Rindfleisch, claiming that the incriminating content of those emails was in “plain view” subsequent to the incredibly broad search. Due to the unconstitutional search, Rindfleisch eventually pled guilty to misconduct in public office. The Wisconsin Court of Appeals upheld the validity of the search warrants, and the Wisconsin Supreme Court declined to hear the appeal—leaving law enforcement with carte blanche to rummage through personal emails. Rindfleisch’s case provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause. The Wisconsin courts’ decisions stand in direct conflict with many of the Supreme Court’s precedents; just last year in Riley v. California (2014), the Court addressed the precise privacy concerns at issue here. In Riley, the Court unanimously ruled that the Fourth Amendment requirement of a warrant applied to the digital contents of a locked cell phone. Now the issue has morphed to where lower courts are increasingly confronted with broad searches of all of a citizen’s electronic footprint when there is only probable cause to search a specific and identifiable subset of that information. Issuing such warrants directly conflicts with the Fourth Amendment’s requirements of reasonableness and specificity. The practice of granting these warrants, particularly in the digital age, amounts to the grant of general warrants—or writs of assistance—to British officials in the colonies, the chief evil at which the Fourth Amendment was aimed. The Supreme Court should take up this case and articulate meaningful requirements for specificity and reasonableness for electronic search warrants. It should invalidate the fishing expeditions that have become prevalent in political battle zones like Wisconsin.

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