Appeals Court: As Long As The Government Has 'Good Faith,' It Can Root Around In Your Digital Files As Much As It Wants

from the no-time-for-merits,-not-when-there-are-people-needing-to-be-locked-up! dept

A case dealing with a warrant issued in 2003, a subsequent warrant issued in 2006, and a whole lot of judicial work in between finally concludes — with the Second Circuit Court of Appeals coming down on the side of the government’s apparent “right” to seize everything, hold it for an indefinite period of time, and pore through unrelated documents in hopes of finding evidence of additional criminal activity.

The government, in the form of the US Army, first went after Stavros Ganias for billing improprieties and theft of copper wire. Over the next three years, this morphed into an IRS investigation for tax fraud, using the same hard drives the Army seized three years before the IRS showed any interest. The IRS obtained its own warrant and began looking for evidence related to its suspicions.

In 2014, the Appeals Court decided Ganias’ Fourth Amendment rights had been violated by the government’s multi-agency fishing expedition.

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.

The DOJ immediately asked for a rehearing, claiming it should be able to dig through unrelated files because the seized hard drives were technically government property. Besides, it explained in its 86-page brief, this sort of fishing around in non-relevant files had once resulted in a child pornography conviction.

The Second Circuit’s second take [PDF] doesn’t necessarily align with the government’s arguments. However, despite the opinion running 60 pages, the court spends very little time discussing the Fourth Amendment implications and a lot of time developing the government’s “good faith exception” argument for it.

For whatever reason, the court mostly glosses over the lack of “good faith” in the Army’s examination of files unrelated to is investigation and its extended seizure (in the form of mirrored hard drives) of non-relevant files. Instead, it focuses mostly on the IRS’s warrant and search of the mirrored drives, finding that this warrant — issued two-and-a-half years after the first one and predicated on the Army’s peek at unrelated files — was obtained and executed in “good faith.” The end result is another win for the government’s heart being in the right place and another loss for Fourth Amendment protections.

Ganias argues that the Government retained non-responsive data on mirrored hard drives acquired pursuant to a 2003 search warrant in violation of the Fourth Amendment, and that evidence acquired pursuant to a 2006 search of that data should thus have been suppressed. Because we find that the Government relied in good faith on the 2006 warrant, we need not and do not decide whether the Government violated the Fourth Amendment, and we affirm the judgment of the district court.

Further on in the opinion, the court inadvertently shows its hand — pointing out that discussing “good faith” exceptions means it’s not interested in examining the merits of the defendant’s arguments.

Having noted Ganias’s argument, we do not decide its merits. We instead turn to the question of good faith.

The government gets credit for trying. The accused get nothing more than a brief tap on the shoulder as the court squeezes by them and their questions.

Judge Chin’s dissent [PDF], for what little good it does for Ganias and future citizens in his position, at least makes some attempt to address the lack of merit in the government’s arguments.

[E]nshrined in the Fourth Amendment is the foundational principle that the Government cannot come into one?s home looking for some papers and, without suspicion of broader criminal wrongdoing, indiscriminately take all papers instead.   

In this case, the Government argues that when those papers are inside a computer, the result is different. It argues that when computers are involved, it is free to overseize files for its convenience, including files outside the scope of a warrant, and retain them until it has found a reason for their use. In essence, the Government contends that it is entitled to greater latitude in the computer age. I disagree. If anything, the protections of the Fourth Amendment are even more important in the context of modern technology, for the Government has a far greater ability to intrude into a person?s private affairs.

Chin is uninterested in allowing the government to shrug and say, “Technology is hard,” before obtaining its “good faith” pass from the courts.

The majority opinion, however, makes it clear that as long as the government obtains a warrant, it can dig through non-relevant documents for an indefinite period of time. Because the court decided to pass on examining the merits of Ganias’ Fourth Amendment arguments, the government will be able to use its “good faith” shield in the Second Circuit for years to come. It took Ganias several years of courtroom appearances to fight a search that occurred ten years ago. And while this has made its way slowly through the justice system, his life has been on hold. Tracing back to the point where he was first investigated for wrongdoing, that’s 13 years of his life — and all of it for nothing, thanks to the two words no defendant wants to hear: good faith.

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Comments on “Appeals Court: As Long As The Government Has 'Good Faith,' It Can Root Around In Your Digital Files As Much As It Wants”

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That One Guy (profile) says:

Re: Hard to forget what's being constantly shoved in your face

How in the world could anyone forget that with cases like these popping up like weeds? Case after case, ruling after ruling making it abundantly clear that a great many judges are firmly on the side not of justice but the government, whether that be in the form of police or government agencies.

Most of them don’t even pretend to be a neutral third-party anymore, making their biases crystal clear in their rulings as they bend over backwards to help the prosecution.

No, I don’t think anyone paying attention is likely to forget that little tidbit of information any time soon.

Anonymous Coward says:

Re: Re: Hard to forget what's being constantly shoved in your face

The problem for the judges is that they are between a rock and a hard place. if they don’t toe the party line they will pay with their lives. The government is not above using such threats to get their way.

That is the rock. The hard place is that, in time, the people will rise up and simply execute the errant judges. So for a short term gain of additional years now, they create an injustice system that will ensure they die later.

For many of these judges, the short term gain of supporting the government against the longer term maybe of having to face a angry citizenry is a no brainer, support the government.

If the constitutionally supported rebellion against government overreach was to become much more real, you might find judges getting a bit of backbone and actually supporting the constitution instead of the government.

I find it interesting that in many essential ways, many of the persons in official positions act as traitors against the very foundation of the US. They take a public oath of protecting the constitution and immediately turn around and work against it. This occurs from POTUS on down. Go figure.

Anonymous Coward says:

Re: Re: Re: Hard to forget what's being constantly shoved in your face

Really, it’s just as likely a judge is going to be shot up by the defendants as they are their own government. Like a cop, the job of being a judge requires a thick skin. That’s an assessment of the empirical facts and I wouldn’t get too caught up in the emotion here.

Eventually you get to the point where reasonably sounding explanations stop working on the peasantry because they sound just as plausible as speculation founded on magical thinking.

Magical Thinking: Issuing a 2nd warrant to property seized under an unrelated warrant, accusation, and crime, of which didn’t pan out.

Magical thinking: The defendant here is a former IRS agent engaged in professional tax evasion. Are we to believe the judge is not suspending his 4th amendment rights because of the perception this guy went rogue?

Magical thinking: Being accused of evading 70,000 or more pages of IRS Tax code built over the last 60 years by lawyers trying to make sure the government is “fair and balanced” whilst robbing everyone blind, during a time frame mind you, when the IRS was actively going after political dissidents it didn’t like.

Magical Thinking: Not naming the “anonymous tipster” who originally levies the accusation in this case, after the revelation of domestic law enforcement agencies receiving classified compartmentalized information on their investigations and engaging in parallel construction.

There is a lot of magical thinking going on here by the government. Too much for this peasant to stomach frankly.

I have no doubt a higher court will throw this case out and put the goons in their place.

Uriel-238 (profile) says:

Re: Re: Re: Hard to forget what's being constantly shoved in your face

in time, the people will rise up and simply execute the errant judges.

If France’s history is to serve, the errant hanging judges won’t die alone. The revolutionary tribunals will be eager to clean the stables and the entire judiciary save for a handful of favorites will face the guillotine. Same with the Department of Justice, in which fair prosecutors follow cheaters and good cops follow bad.

The violence of revolution is a fire difficult to extinguish or curtail.

That One Guy (profile) says:

'Good Faith Exception' = 'Rules and/or laws are entirely optional'

Tracing back to the point where he was first investigated for wrongdoing, that’s 13 years of his life — and all of it for nothing, thanks to the two words no defendant wants to hear: good faith.

Wants to hear or, and here’s the kicker: Gets to use themself.

Not many judges I imagine would be willing to buy ‘I didn’t know I was breaking the law your honor, I thought I was acting legally at the time’ as an acceptable defense by someone without a badge. You can be sure that if anyone tried that on the defense side they’d be told that not knowing the law wasn’t a valid excuse for breaking it, and they will still be punished regardless.

Any judge who agrees that ‘Good faith’ is an acceptable excuse is basically saying that they don’t in fact believe that the rules apply to everyone, that laws are entirely optional depending on who is breaking them. At that point they might as well flat out admit that they don’t care one bit about justice, all they care about is convicting people, and they don’t care about the laws unless they are being used for convictions, seeing them as entirely optional otherwise.

Anonymous Coward says:

Missing something...

Can someone, anyone point us to where this clause in the Constitution in the Bill of Rights saying these are unalienable except when the government is acting in “good faith”?

It is impossible for the government to act in good faith by its very own nature. In fact that very idea of a government body even considered to have operated in good faith should be a thought crime punishable by death! The people, fucking dumb enough, to believe it should be put out of OUR MISERY!!!

Anonymous Coward says:

Re: Decisions...

There wasn’t enough evidence to get him on the copper or billing problems, so let’s keep digging until we find something to throw the book at him.

If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.
Cardinal Richelieu

Anonymous Coward says:

Mandatory Godwin

Let’s take a moment to understand what “Good Faith” means here, and to do that we need to first look at what it doesn’t mean. What “Good Faith” doesn’t mean is just, right, lawful, good or benevolent. What “Good Faith” means is “We think what we’re doing is the right thing.”
While one could expect leniency in a case for doing the wrong thing if you had “good faith” in doing it, it does NOT justify the action itself. Please excuse the Godwin law I’m invoking here, but Hitler had “good faith” that all the evil and deplorable things he was doing (or ordering others to do) was right and just. That very obviously did not make it so, as much of the world is aware.

By granting immunity or exception to the government’s and its law enforcement agencies’ “good faith”, they are removing a very necessary check and balance to keep that government under control and away from tyranny.

With the direction the US is heading in right now, we are well on our way to becoming the world’s enemy, not it’s ally or protector.

Anonymous Coward says:

> Appeals Court: As Long As The Government Has ‘Good Faith,’

Yeah, about that:

Are the courts really that clueless about the degree to which the government authorities have been misleading them on issues of surveillance lately? Or do they just turn a blind eye on purpose?

Maybe I don’t expect judges to be up to date to the latest FBI story, but surely they can’t be THAT clueless after how many discussions on mass surveillance we’ve had post-Snowden? So I have to believe they are doing it on purpose, while pretending to not know any better.

Uriel-238 (profile) says:

I'm pretty sure that "good faith" came from the unconscionable consequence of evidence mishandling...

That is to say, when an officer conducted an illegal search and found evidence of wrongdoing, the state couldn’t use evidence from that search, or from anything derived from that search.

Imagine if the incriminating evidence of a serial killer, ultimately leading to his victim pit, was found during an illegal search. The temptation to fake it and throw aside forth protection laws becomes too much. Eventually, we systematized this exception with the notion of good faith.

But as Madison would astutely note, our police officers are not angels and not only are subject to corruption, but can’t even tell good faith from bad on their own. White cops who discriminate against black civilians don’t know they’re doing it. They’re just going after the bad guys.

We just don’t yet have a way to reconcile this dilemma: respect the rights of civilians, and terrible people will escape due to investigatory missteps. Accommodate for those missteps and the government notion of justice falls aside.

That is, if the US Justice system ever served actual justice in the first place. Have public defenders always been disregarded? They were when I was a kid.

Anonymous Coward says:

Someone gets it!

In this case, the Government argues that when those papers are inside a computer, the result is different. It argues that when computers are involved, it is free to overseize files for its convenience, including files outside the scope of a warrant, and retain them until it has found a reason for their use. In essence, the Government contends that it is entitled to greater latitude in the computer age.

It always amazes and frightens me how most people increasingly regard computers as magic even as they use them more and more in their daily lives!
At least this judge understands that it’s the same as papers. It’s just a different medium!
Do the laws apply differently if you use a pencil versus a pen? If you use cheap copier paper? What about cardboard? I guess the only safe medium must be stone tablets, since those are usually the tool for sacred words… There’s your “good faith”!

Anonymous Anonymous Coward (profile) says:

Except in their imaginations, or paychecks, or blackmail

“Amendment 4 – Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

I don’t have the kind of convoluted mind that practitioners of law have, but this seems pretty clear to me. While it does not say specifically that a warrant is required, to me, it requires a warrant. What I don’t see is any kind of good faith. It says categorically “shall not be violated” and any kind of exception clearly does not comport with shall.

Anonymous Coward says:

Re: Except in their imaginations, or paychecks, or blackmail

While it does not say specifically that a warrant is required


Read it again and again until you see it! The 4th specifically states that the ONLY “REASONABLE” search and seizure that exists is one achieved via a warrant.

Read it, read it, and read it again if you must! It is crystal fucking clear! A warrant WITH SPECIFICS is required every fucking time the government wants to seize a damn thing of yours, and because of the way it is written it even precludes 3rd party doctrine.

The American and Legal understanding the mother fucking English language is a shit pile now. The Founders wrote long and hard on what all of this means! There is no mystery, except those dumb enough to believe a lawyer.

There is a reason there is a trend to rewrite things. For example, the very dissonance necessary to enslave black people was to claim they were not people at all. 3rd party doctrine, the anti gun lobby, the hard on crime zealots, surveillance state, and anchor baby fuckwits all have this dissonance.

The Wanderer (profile) says:

Re: Re: Except in their imaginations, or paychecks, or blackmail

Actually, I can’t see where it does say that.

It says that “the right to be secure against unreasonable searches shall not be violated” and that “no warrants shall issue except as described here”, but it does not say that “no search for which no warrant has been issued shall be considered reasonable”, or indeed draw any other apparent connection between these two statements.

The usual interpretation of what it does say is that a warrant (supported as described) is what substantiates reasonability, but as far as I can see, the text itself does not seem to explicitly indicate any such thing.

That One Guy (profile) says:

Re: Disgusted? Constantly. Surprised? Not for a good while now

I believe I can honestly say that said shattering of faith has not happened to me in a good while now, because I have absolutely no faith left in the system to be shattered.

These days I expect the worst from the government and legal system and more often than not I’m ‘rewarded’ with exactly that, and when I’m surprised it’s almost always surprise in the sense that even expecting the worst they still managed to go above and beyond in making things worse, whether on an individual level or more widespread.

On the upside by having the lowest possible expectations the small handful of times they do get it right are extra rewarding; seeing sanity prevail, if only momentarily is that little bit better.

Narcissus (profile) says:

We've got ourselves to thank?

This kind of overreach is what the government thinks we want. Usually when a murderer or a child pornographer walks “on a technicality” the outrage is huge. Which people get re-elected? The ones that have high conviction rates and a reputation to be tough on crime.

Look at Hollywood. How many movie cops get cheered on for having a the-end-justifies-the-means attitude? Breaking rules and laws just to get a conviction or, sometimes preferred, a dead criminal.

You get the government you deserve. As long as the majority of the population supports this kind of attitude to law enforcement, the government is happy to abuse the leeway given.

Uriel-238 (profile) says:

Re: We've got ourselves to thank?

It’s the story we like to tell, when the good cop is handsome and wears a white hat, and the villain has a black hat and a moustache.

Rarer are the procedural stories in which there’s doubt in who did it.

We like easy answers. We’d prefer if villains were all recognizable, it’s the sort of thing that makes Yellow Badge policy.

Our constitutional framers made the fallacy of relying on the people being thoughtful and rational even for the duty of knowing and voting on their own best interests. In future societies we’ll need to accommodate for the fact that they are so not, and will even commit massacre and atrocity for easy solutions.

JonC (profile) says:

The amendments to the constitution are intended specifically to be restrictive to the government. Just look at the preamble to the bill of rights for clear proof of that.

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

These additional restrictions were added to prevent misconstruction or abuse of power by the government, and to increase the public’s confidence in the government. Maybe our elected officials and a majority of judges forgot that.

When our government decides it doesn’t have to play by the rules we go from good guys vs. bad guys, to bad guys vs. bad guys.

Anonymous Coward says:

It sounds like the original warrant was inadequately written.

Probably when the fed investigates any kind of fraud against the government, tax avoidance should be mentioned in the warrant. It is sort of like intent to distribute. If you’re stealing from the government, your probably extremely likely to also be committing tax fraud at some level.

So it sounds like the the Army failed to consider that they had pals at the IRS who might want a piece of this guy when requesting the warrant to search, and the judge is making up the difference for the SNAFU.

The Federal appeals courts are pretty much the south park of the legal system.

Caleb (profile) says:

Where were the hard drives originally seized?

I raise the question as any device, and any information on said device, willfully taken onto federal property (ie, a military base) falls outside the 4th amendment prohibition on search and seizure does it not? If the contractor in question maintained offices on base, then any information within those offices (on computer or in a file cabinet) effectively belonged to the US gov’t in any case. This is a fairly standard rider on any kind of onsite office provision within a supplier/gc contract.

I did not notice in the provided docs the location of the seized material. Nor did I notice the gov’t make that argument. But I am surprised it did not appear.

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