Court Says Feds Violated 4th Amendment By Holding Onto Suspect's Computer Data Too Long

from the hey-the-4th-amendment-still-exists dept

Yet another court has remembered that the 4th Amendment exists. The Second Circuit appeals court has ruled that the government violated the 4th Amendment rights of Stavros Ganias when it held onto data it had seized (legally) from his computers for longer than the warrant in question allowed. In executing the warrant, Army investigators (Ganias was providing tax and accounting services to a couple of companies providing security to the Army at a vacant facility, and there were allegations that people at one of the companies was stealing copper wire from the facility and also playing some games with billing) made copies of Ganias’ computer hard drives — including files “beyond the scope of the warrant” such as his personal financial records.

While Ganias objected to the collection of such files as it was happening, he was told investigators were only concerned with the specific case at hand and would get rid of the other files. Take a guess what didn’t happen? Yeah, they hung onto those files, and then in searching them, found some other stuff of interest and passed all of the files along to the IRS. While they claim that they focused on the files the warrant covered, they refused to delete the other files:

They did not, however, purge or delete the non-responsive files. To the contrary, the investigators retained the files because they “viewed the data as the government’s property, not Mr. Ganias’s property.” Their view was that while items seized from an owner will be returned after an investigation closes, all of the electronic data here were evidence that were to be protected and preserved. As one agent testified, “[W]e would not routinely go into DVDs to delete data, as we’re altering the original data that was seized. And you never know what data you may need in the future. . . . I don’t normally go into electronic data and start deleting evidence off of DVDs stored in my evidence room.” The computer specialists were never asked to delete (or even to try to delete) those files that did not relate to IPM or American Boiler.

Now take a guess what happened? After digging deeper into the original files, the IRS suddenly began to suspect Ganias himself of cooking some books, and decided it wanted to look at his personal financial records which, conveniently, were right there in the collection of documents they were never supposed to have or look at. To their (slight) credit, the IRS recognized it couldn’t just search those files, and so got another warrant to go through them. However, it only had them because it had sat on them for two and a half years, and Ganias insists that the original files had been changed soon after the Army’s copying of his hard drives. At trial, Ganias was convicted, but the appeals court has trouble with the 4th Amendment implications. After going through a quick history of the 4th Amendment it notes (thankfully) that these concepts still apply in the computer age.

These Fourth Amendment protections apply to modern computer files. Like 18th Century “papers,” computer files may contain intimate details regarding an individual’s thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is warranted….

It also notes that with so much stuff stored on computer, sometimes this gets tricky:

Not surprisingly, the ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants. It is “comparatively” commonplace for files on a computer hard drive to be “so intermingled that they cannot feasibly be sorted on site.”… As evidenced by this case, forensic analysis of electronic data may take months to complete. It would be impractical for agents to occupy an individual’s home or office, or seize an individual’s computer, for such long periods of time. It is now also unnecessary. Today, advancements in technology enable the Government to create a mirror image of an individual’s hard drive, which can be searched as if it were the actual hard drive but without interfering with the individual’s use of his home, computer, or files.

The court notes that creating such a mirror image is okay… but there are limits on what can be done with the seized data. By hanging onto all his records indefinitely, the court found that it interfered with his 4th Amendment rights.

The Government’s retention of copies of Ganias’s personal computer records for two-and-a-half years deprived him of exclusive control over those files for an unreasonable amount of time. This combination of circumstances enabled the Government to possess indefinitely personal records of Ganias that were beyond the scope of the warrant while it looked for other evidence to give it probable cause to search the files. This was a meaningful interference with Ganias’s possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment.

[….] The Government had no warrant authorizing the seizure of Ganias’s personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of American Boiler and IPM. Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated Ganias’s Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.

As for the government’s argument that once they have these files they’re now “government property,” the court rejects that pretty quickly.

As explained above, practical considerations may well justify a reasonable accommodation in the manner of executing a search warrant, such as making mirror images of hard drives and permitting off-site review, but these considerations do not justify the indefinite retention of non-responsive documents…. Without a warrant authorizing seizure of Ganias’s personal financial records, the copies of those documents could not become ipso facto “the government’s property” without running afoul of the Fourth Amendment

The court also rejects a variety of other attempts by the government to get around this, including the fact that Ganias had not earlier brought a motion to “return” the property. Apparently that was convincing to the lower court, but not so here.

Imposing such a prerequisite makes little sense in this context, where Ganias still had the original computer files and did not need the Government’s copies to be returned to him. Moreover, we fail to see what purpose a Rule 41(g) motion would have served, given the Government’s position that non-responsive files in its possession could not feasibly have been returned or purged anyway.

In the end, the court outlines how troubling the government’s position is in this case:

The Fourth Amendment was intended to prevent the Government from entering individuals’ homes and indiscriminately seizing all their papers in the hopes of discovering evidence about previously unknown crimes…. Yet this is exactly what the Government claims it may do when it executes a warrant calling for the seizure of particular electronic data relevant to a different crime. Perhaps the “wholesale removal” of intermingled computer records is permissible where off-site sorting is necessary and reasonable,… but this accommodation does not somehow authorize the Government to retain all non-responsive documents indefinitely, for possible use in future criminal investigations.

There’s a separate issue also in the case, concerning a juror commenting (negatively) on the case on Facebook during the case (and also friending another juror on Facebook), but the court didn’t seem to concerned about that, rather suggesting that courts should be a bit more upfront with jury instructions to avoid that sort of thing.

Either way, while a very specific issue, it’s a nice 4th Amendment win.

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Comments on “Court Says Feds Violated 4th Amendment By Holding Onto Suspect's Computer Data Too Long”

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Anonymous Coward says:

Re: About bloody time

Absolutely. I think this has huge implications for the back-door searches that the NSA performs. I can’t find a link right now, but it seems they’ve justified their actions in the past by saying that no law enforcement agency is required to dispose of or get a warrant to search extraneous data picked up by an original warrant. This ruling seems to show otherwise.

Coogan (profile) says:

And you never know what data you may need in the future. . .

That’s when you get ANOTHER FUCKING WARRANT, you dipshit.

Jeez, I took a semester of Civics in 9th grade, taught by a football coach, at a redneck school where 90% of the arguments were about Skoal vs Copenhagen, and it appears I learned more in that class than most of these government morons.

David says:

Re: Re:

By the time they would have found cause to get another warrant, the data would already have been long gone from the suspect’s computers.

So they could not have caught him without using past data.

Which is a pity, but not half as bad as when a traffic stop or whatever other flimsy excuse enables siphoning off a complete mirror from some computer user in order to investigate at leisure when needed.

“You don’t want to hand over your probably contraband money quietly? Maybe we’ll have a look at the mirror image of your computer from five years ago more closely and see whether you have been a nice guy.”

It’s better to let some of the small crooks run under the radar rather than give government workers the tools required to become big crooks.

Trevor (profile) says:


“from the hey-the-4th-amendment-still-exists dept”

Sometimes, after reading these articles and cases involving the 4th Amendment, it makes me worry that someone is actually going to notice the 4th Amendment still applies and try to do something about it.

Certain appellate judges and certain REDACTED courts now see a law enforcement/surveillance “loophole” that needs to be closed. Over / Under on when a ruling comes out directly disclaiming this one? I say 8 months.

Trevor (profile) says:


“And you never know what data you may need in the future…”


Sure, there are “checks” to make sure data isn’t retained longer than the laws, secret or otherwise, allow. Just like here, the Warrant limited the length of how long it would be held.

But that didn’t stop them from holding on to it longer, BECAUSE YOU JUST NEVER KNOW.

People who say “I don’t have a problem with it because I don’t have anything to hide.” YET. You do not have anything to hide, YET. And they’ll hold on to it, just in case…

Uriel-238 (profile) says:

Why is this not sounding klaxons

The attitude of the government (is that the DoJ? The US Army? The District Attorney’s Office?) in this specific case should be a cause for high alarm that there is need for policy review and revision.

Firstly, Ganias was informed at the time of the seizure of his files that they’d be treated in a specific way, and then they weren’t, and this constitutes an outright lie.

Secondly, data extraneous to the investigation was forwarded to the IRS (without indication of crime, no less) merely to further inconvenience Ganias. Doing so was an act of open malice. Is the government typically so insecure in their ability to effectively prosecute that they must resort to such tactics to impede a suspect from defending himself?

And thirdly, the government attitude that “it’s our data now” seems to be typical. How many other cases have seen convictions due to agency procedure to seize and retain data in violation of warrants? How many other cases have been built from data inappropriately seized and irrelevant to the case for which they were secured? Warrants are supposed to specify a narrow search and a singular crime.

Perhaps future justice systems should rule that evidence secured with a warrant for one crime becomes inadmissible for post hoc charges.

Considering this was simply a re-utterance that the Fourth Amendment remains in effect, should not any other cases be reviewed and appealed if violations thereof were necessary to secure a conviction?

The risk of the state cheating to earn convictions is that justice is not done, and responsibility for those consequences rest on the heads of the cheaters (which is to say they should get fired, disbarred, exiled, whatever).

Once again, the DoJ is clearly broken, and that brings to question every conviction decided by it. Until the integrity of the DoJ is restored, all its prisoners are political prisoners.

keithzg (user link) says:

I don't tend to delete data from DVDs either...

I don’t normally go into electronic data and start deleting evidence off of DVDs stored in my evidence room

So, what, they’re using rewritable DVDs for evidence storage? Are they planning on reusing them? They sure don’t seem to be, since they otherwise seem keen on keeping all gathered information indefinitely. So why would they say this? Oh, right, I forgot: it’s just because they don’t actually know what the fuck they’re talking about, legally, ethically, or technologically.

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