The Supreme Judicial Court ruled today that prosecutors can order e-mail providers such as Google hand over the complete e-mail records of people under indictment - if they're being investigated for additional charges and under strict supervision to ensure they don't get a look at any messages between the defendants and their lawyers.
The ruling comes in the case of the owner and an employee of a company charged with Medicare fraud. After the owner, Dr. Punyamurtula Kishore, and Preventative Medical Associates were indicted, the state Attorney General's office obtained a court order under which Google handed over roughly 80,000 e-mail records, from both his account and that of another employee.
The AG's office employed a two-step process to ensure it only actually looked at e-mails related to its criminal investigation that did not also involve messages to the defendants' lawyers - first a forensics expert used a program to segregate messages that mentioned the lawyers' names, then a "taint team" of prosecutors with no connection to the case reviewed messages.
Kishore and the company's lawyers objected, saying that after they got a look at the messages, some of them were "privileged" under the Constitution's right to counsel and against unreasonable searches and seizures.
In its ruling, the court said it had no problems with a large prosecutorial office such as the Attorney Genera's office setting up taint teams - and requiring its members to swear not to reveal anything they see to anybody - but that the approach might not work with the state's smaller district attorneys offices. It added prosecutors in the future will need to tell judges from whom they seek search warrants for e-mail whether the person is already under indictment - something that did not happen in this case.