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DOJ Reasserts Its Right To Engage In Seized Data Fishing Expeditions

from the so-many-'interests,'-so-few-granted-to-individual-citizens dept

Last June, the Second Circuit appeals court restored a bit of Fourth Amendment protection to computers/devices seized by government investigators. In the case being appealed, accountant Stavros Ganias had three of his computers imaged by Army investigators looking for evidence of billing fraud and property theft. He wasn’t a suspect in either of the crimes and the warrant specified investigators were only to review information from Ganias’ hard drives pertinent to these allegations.

Instead, the Army held onto every piece of data it had obtained for two-and-a-half years before investigators came across data that suggested Ganias was committing tax fraud. It reoriented its investigation and obtained a warrant to search the imaged drives for more evidence of Ganias’ malfeasance.

Ganias challenged this, claiming the government’s inability to stay within the limits of its initial investigation violated his Fourth Amendment rights. The appeals court agreed, and tossed the evidence investigators had gathered with its second warrant.

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.

The DOJ disagreed with this finding and asked for an en banc rehearing. The court has obliged, giving the agency a second crack at receiving legal permission to engage in prolonged fishing expeditions with seized devices and data. The DOJ has filed an 86-page brief, which not only suggests investigators have every right to root around in digital unmentionables until evidence of criminal activity — any criminal activity — is found, but that the term “brief” is often severely misleading.

TL; DR: because warrants were issued (even if the second had nothing to do with the target of the first warrant), no Fourth Amendment violation occurred. And, if a violation did occur, here’s a “good faith” band-aid.

The government’s actions in this case were reasonable and complied with the Fourth Amendment. The Fourth Amendment permits the seizure of computers to execute search warrants and further permits the retention of those computers—even if they contain non-responsive files—for legitimate government reasons, including, inter alia, evidence authentication and compliance with discovery obligations. Because the government legitimately holds the forensic images, a subsequent search of those images is generally reasonable where, as here, the search is authorized by a search warrant. But even if the government agents failed to comply with the Fourth Amendment in some respect, they acted in good faith, in reliance on two warrants, and with the goal of respecting the defendant’s Fourth Amendment rights. Accordingly, there is no basis for suppression in this case.

More specifically, the DOJ argues that the government’s needs and wants (along with its possessory interest during the duration of the original investigation) supersede any privacy interest raised by Ganias. The DOJ makes only a passing reference to its fishing expedition, claiming it was prompted (mostly) by evidence not located on the seized computers.

Because the government acted reasonably in obtaining and retaining the forensic images in this case, its subsequent search of those images for evidence of tax violations by Ganias—under the authority of a new search warrant—was also reasonable. The images were legitimately in the government’s possession, and the government developed probable cause (based largely on evidence outside the retained forensic images) to believe that the images contained evidence of another crime. Thus, it is entirely reasonable for the government to obtain a subsequent search warrant to review a retained image anew. The individual’s privacy interest is protected effectively by the issuance of a second warrant.

The DOJ spends most of the brief explaining both imaging methods and the many reasons all seized data must remain intact during the course of an investigation. It devotes far fewer paragraphs to explaining why it feels it has the right to examine unrelated files for evidence of other wrongdoing. When it does finally get around to discussing this aspect of its “rummaging” efforts, it unsurprisingly decides this is best illustrated with a recounting of a child pornography investigation.

This doesn’t conflate Ganias’ almost-undetected tax evasion with the sexual abuse of children, because that would be pointless and crazy. It’s actually more devious and disingenuous than that. It not-so-subtly implies that if the court finds rummaging through files and examinations exceeding the scope of issued warrants to be a violation of the Fourth Amendment, child pornographers will go undetected or unpunished.

Now, in all fairness to a government agency (one frequently unwilling to extend the same courtesy to others), examining hard drive images is far from straightforward and it’s often difficult to determine what’s relevant without looking at what isn’t.. The language of affidavits isn’t really built to handle the nuances of forensic data examination. Changes in technology definitely raise new concerns and issues, but the DOJ feels any new problems should be resolved in its favor.

It contends that the government retains a possessory interest in seized computers, which will almost always outweigh the interests of those whose devices have been seized. This becomes very problematic when the agency seizing the data also determines the extent of the searches and the endpoint of any investigations. While the establishment of probable cause and the securing of warrants does conform with the requirements of the Fourth Amendment, the strength of those protections can easily be undermined by the same government that’s supposed to be respecting these boundaries.

The appeals court will be wading back into some very thorny issues. Hopefully, it won’t result in scaled-back protections.

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Comments on “DOJ Reasserts Its Right To Engage In Seized Data Fishing Expeditions”

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Anonymous Coward says:

Point of order...

…the Army held onto every piece of data it had obtained for two-and-a-half years before investigators came across data that suggested Ganias was committing tax fraud. It reoriented its investigation and obtained a warrant to search the imaged drives for more evidence…

Since when does the Army have jurisdiction regarding tax fraud issues? Shouldn’t they turn that over to the IRS?

Anonymous Coward says:

The problem really is...

that anyone can be made to look bad by the appropriate distortion of the facts. Leave stuff out and you can make any situation look bad or if you are supporting the law enforcement agencies make them look good.

The above article simply shows that the principle of “innocent until proven guilty” has long been forsaken by all government based organisations in regards to the citizens of the nation.

When ever the bogeymen of child pornography or terrorism or drugs, etc are brought to the fore as a justification of law enforcement actions, then we know that justice has fallen by the wayside.

When low level “crimes” like the above are used to distract from the much more rampant crimes being performed by large criminal organisations (such as banks, international crime gangs, arms dealers, governments, law enforcement, spy agencies, etc) whose actions affect drastically millions of lives every day, then we know that society is already dead.

I am not saying that child pornography, etc are minor crimes, they are disgusting and need to be dealt with. But to focus on these as if they are worse than many others misses the point that there are others that are just as bad, if not worse, which are not dealt with because they are too hard.

Anonymous Coward says:

I’m convinced the USA ‘Freedom’ Act is yet another attempt to legalize mass surveillance. Do you really believe the US government would pass a law which prevents them from using their billion dollar mass surveillance systems that they’ve already built?

Does anyone honestly believe the NSA won’t have direct access to query Verizon and AT&T databases in a bulk and automated (mass surveillance) manner?

Does anyone think the FISA Court won’t simply rubber stamp a general warrant which will authorize the NSA (DEA, DOJ, whoever) to pull multiple records from Verizon and AT&T’s databases without requesting separate warrants for each individual?

I don’t believe any of it. Not after seeing the US Government fight tooth and nail against any meaningful reform or oversight of their mass surveillance programs.

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