Officials armed with a warrant to search for evidence of a crime contained in individual emails can seize and hold the entire email account without running afoul of the Fourth Amendment, a magistrate judge has ruled.
In a holding at odds with at least two other courts, Southern District Magistrate Judge Gabriel Gorenstein (See Profile) said email accounts are analogous to hard drives, which can be seized in their entirety by law enforcement acting with a warrant and then held for inspection of their entire contents during the pendency of an investigation and prosecution.
The ruling, In the Matter of a Warrant for All Content and Other Information Associated With the Email Account xxxxxxx@Gmail.com Maintained at Premises Controlled By Google, 14 Mag. 309, came in a money-laundering probe.
Gorenstein issued the warrant on June 11 and delivered an opinion July 18 explaining his reasoning because it conflicted with at least two other opinions: In the Matter of the Search of Information Associated With [redacted]@mac.com that Is Stored at Premises Controlled by Apple, 2014 WL 1377793 (D.D.C. April 7, 2014), and 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).
The District of Columbia judge in the first case refused to issue a warrant requiring disclosure of the entire email account because that would allow the government to “actually seize large quantities of emails for which it has not established probable cause.”
In the second, the court in Kansas denied the warrant sought because it failed to “limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.”
The D.C. opinion, Gorenstein said, also cited the U.S. Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971), and the exception to the warrant requirement for evidence of crime that was in “plain view.” Coolidge cited the history of “general warrants” so abhorrent to Colonial America and the D.C. Court held the view that the government was asking it for a general warrant that would allow “a general, exploratory rummaging in a person’s belongings.”
Gorenstein disagreed, saying the D.C. court “too narrowly construes the Fourth Amendment’s particularity requirement and is contrary to copious precedent.”
“In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search,” he said.
So courts have developed a more flexible approach compared to on-site searches and “routinely” allow the seizure of entire hard drives, he said, and that’s why the Federal Rules of Criminal Procedure were amended in 2009 [Rule 41(e)(2)(A)] to allow a warrant that “authorizes a later review of the media or information.” Under the amended rule, the time for executing the warrant “refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.”
Gorenstein also said in June the U.S. Court of Appeals for the Second Circuit held in United States v. Ganias, 2014 WL 2722618, that “the creation of mirror images for off-site review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be.”
Gorenstein said he could “perceive no constitutionally significant difference between searches of hard drives and email accounts.
“Indeed, in many cases, the data in an email account will be less expansive that the information that is typically contained on a hard drive,” he said. “Therefore, we believe the case law we have cited concerning searches of hard drives and other storage media supports the government’s ability to access an entire email account in order to conduct a search for emails within the limited categories contained in the warrant.”
He said the D.C. court gave the government the option of requiring the email host, in that case Apple, to conduct the search itself, but Gorenstein dismissed that option as impractical. In the case before him, he said, it would be burdensome for Google and company employees “would not be able to interpret the significance of particular emails without having been trained in the substance of an investigation,” he said.
“Moreover, it would allow private employees—who have no constitutional responsibilities to the public—to obtain personal information about a target of an investigation they would otherwise have no occasion to see, and with no apparent limitation on their use of this information other than limitations imposed by their employer.”
Gorenstein noted that some courts who have issued warrants for electronic information have included “secondary orders” that impose “minimization procedures” on the handling of seized materials, with records outside the scope of the warrant returned to the custodian or destroyed.
But he said he would not impose a deadline on the retention of the account, and there are remedies available in the case of any abuse, including a motion to suppress or a civil damages action.
“We will assume, without deciding, that this court has the power to impose limitations at the time an email warrant application is approved,” he said. “But we did not impose them here because we recognize that the government has a need to retain materials as an investigation unfolds for the purpose of retrieving material that is authorized by the warrant.”