You’re absolutely right, today’s email environment makes it much easier for investigators to locate communications that can provide evidence of knowledge and intent.

In the old days of telex and fax communications, investigators had to hope that (a) suspects and other parties to transactions kept copies and (b) that those copies could be obtained either by use of a search warrant or in response to grand jury or administrative subpoenas. I remember one search warrant I execute where we found incriminating telexes in the very last drawer of the very last file cabinet we searched, as we were preparing to leave the company’s premises after being there over 8 hours executing a warrant.

In today’s automated environment, emails are routinely stored on computer hard drives. Each of the investigating agencies (FBI, ICE, OEE) has agents specially trained and equiped to batch-copy hard drives on site during a warrant, to include recovering system-stored “copies” of deleted emails and other materails.

Emails can also at times be obtained from third parties, including those on distribution, those who may receive forwarded copies of emails, and from the service providers.

The odds are higher today that pertinent email communications and other electronic documents can be recovered in these ways, even when parties have taken steps to delete them; rather than hoping that parties didn’t shred them or hide ‘em in the rafters.

Mike Turner

For example, in U.S. v. Alavi, after the federal public defender filed a motion to dismiss on the basis that the computer program in question was exempt from IEEPA under the Berman Amendment because BIS had already issued CCAT classifying it as EAR99, Justice pressed BIS to reclassify the program as controlled, and BIS happily obliged. Justice then argued to the judge that the BIS post-indictment classification determination that was made solely as an expedient way to overcome an inconvenient motion to dismisss, was a “political question” not subject to question, and the judge bought the argument based on some 9th Circuit precedent that I think is highly questionable after US v. Mead.

As the Court of International Trade has stated in many, many cases involving classfication under HTS, classification of products is a two step process that is part a determination of law and a determination of fact. The legal question is what do the words of the classifcation description mean, the fact question is whether a particular thing is described by those words as interpreted by the court. While the decision to control an item or a generic class of items might have political consequences that should be subject to only agency discretion, the question of whether a thing is fairly described by the words that the bureaucrats used is not a political question subject to agency discretion, its a classic legal question. Given that both Commerce and State habitually violate the APA by issuing regulations without opportunity for public comment, there is even less reason to give deference to agency licensing determinations.