* This is a magistrate’s written opinion, and has not yet withstood appellate scrutiny. However the issues presented are important for future search warrant requests, and for general legal considerations in our cases. You can read the full opinion here Gmail SW.
This opinion is from a magistrate who authorized the seizure of all email associated with the aforementioned gmail account. This opinion does a terrific job of laying out the state of the law, the splits within the Country, and distinguishing other contrary opinions. This is not a child sexual exploitation case, but the issue presented (seizing/searching all email associated with a particular email account) is integral to our work.
Facts: As part of an investigation into money laundering (and other white collar high tech crimes), an affidavit for a search warrant was submitted seeking to seize and then search all of the email associated with the gmail account of the target of the investigation. The affidavit laid out probable cause to believe that the target of the investigation was using that gmail account to engage in criminal activity, and that other information within that account (including email) would provide evidence of the criminal activity. The warrant calls fo “all content and other information within the Provider’s possession, custody, or control associated with” the email account, including all emails sent, received, or stored in draft form, all address book information, and a variety of other information associated with the account. The search warrant provides that law enforcement personnel “are authorized to review the records produced by the Provider in order to locate” certain specific categories of evidence described in the warrant.
Issue 1: First, is it appropriate to issue a search warrant that allows the Government to obtain all emails in an account even though there is no probable cause to believe that the email account consists exclusively of emails that are within the categories of items to be seized under the search warrant?
Law: The Stored Communications Act of 1986, 18 U.S.C. §§ 2701-2712. Section 2703 of that statute authorizes the Government to obtain the “contents” of an “electronic communication” that is in “electronic storage” or held by a “provider of remote computing service” — such as emails — pursuant to a search warrant under the Federal Rules of Criminal Procedure. See 18 U.S.C. §§ 2703(a), 2703(b)(1)(A). In addition to the Stored Communications Act, 4th Amendment jurisprudence presents issues to consider when granting a search warrant. Namely, general warrants (with a brief discussion about colonial times).
Analysis: At the outset, the magistrate points out recent cases from D.C. and Kansas which denied similar search warrant requests (In the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., 2014 WL 1377793 (D.D.C. April 7, 2014) (“D.C. Opinion”); In the Matter of Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, 2013 WL 4647554 (D. Kan. Aug. 27, 2013) (“Kansas Opinion”)). The overriding reason the DC court denied the search warrant was because of law enforcement would “actually seize large quantities of e-mails for which it has not established probable cause…” The Kansas court similarly held that the warrant as written ‘required an email host to disclose ‘all email communications in their entirety’ and ‘fail[ed] to limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’”
The magistrate in this case, disagrees with the DC opinion, noting that “it too narrowly construes the Fourth Amendment’s particularity requirement and is contrary to copious precedent. As an initial matter, we note that “[a]mple case authority sanctions some perusal, generally fairly brief, of . . . documents (seized during an otherwise valid search) . . . in order for the police to perceive the relevance of the documents to crime.” United States v. Mannino, 635 F.2d 110, 115 (2d Cir. 1980) (quoting United States v. Ochs, 595 F.2d 1247, 1257 n.8 (2d Cir. 1979)); accord Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976) (“In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”). As the Second Circuit has noted, “allowing some latitude in this regard simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked ‘drug records.’” United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990).
In the context of digital evidence, the magistrate here goes into a recitation of case law which has allowed law enforcement to create forensic duplicates of suspect hard drives in order to search for relevant evidence. “Where proof of wrongdoing depends upon documents . . . whose precise nature cannot be known in advance, law enforcement officers must be afforded the leeway to wade through a potential morass of information in the target location to find the particular evidence which is properly specified in the warrant.” United States v. Scarfo, 180 F. Supp. 2d 572, 578 (D.N.J. 2001). The magistrate then links the seizing and later searching of a forensic hard drive to the instant search warrant, which would allow the immediate seizure of everything, in order to cull out the relevant information at a later date.
As a subsidiary matter, the magistrate discussed the notion of having the host (google, mac, etc…) do the searching for relevant information and passing that along to the law enforcement agency. The magistrate here made quick work of that for all of the reasons you can imagine (not properly trained, not staffed, not good for business).
Issue 2: Second, assuming we permit delivery of the entire email account to the Government, should the Court require that the Government follow certain protocols whether as to length of search, manner of search, or length of retention of the emails as a condition of obtaining the search warrant?
Some courts, after issuing a search warrant, have issued a secondary order requiring the destruction or return of the information not within the scope of the warrant. See In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron.Alexis that is Stored at Premises Controlled by Facebook, Inc., 2013 WL 7856600, at *7 (D.D.C. Nov. 26, 2013) (“Facebook Opinion”). Such orders are based on the concern that “the government will see no obstacle to simply keeping all of the data it collects, regardless of its relevance to the specific investigation for which it is sought and whether the warrant authorized its seizure.” Facebook Opinion, 2013 WL 7856600, at *7. The magistrate also differentiates the Ganias case (which we have previously posted on).
He essentially holds that there are a host of reasons the Government should be allowed to retain all of the seized data (for authentication at trial, etc…), and there are a host of remedies available to an aggrieved party (suit for return, civil damages, suppression, etc…). Moreover, while there are some reasons for the court to impose ex ante instructions, none are present in this case.