Federal Judge Gives Government Open-Ended Access To All Content In A Suspect's Gmail Account

from the a-warrant-is-NOT-a-permission-slip-to-violate-the-4th-Amendment dept

Even though the government hates to get warrants for searches, sometimes it has no choice. But just because there's a warrant involved doesn't mean the search will be any less invasive. Warrant applications are supposed to contain specifics about what is being sought and where it likely resides based on the sworn statements of investigators. Unfortunately, this often doesn't seem to be the case, especially when it comes to electronic data.

Two recent pushbacks by magistrate judges have sent the government back to its desk to rewrite overly vague warrant requests. (In one case, this resulted in 'judge shopping,' rather than a rewrite. The new judge was unimpressed.) Judges willing to make the government fine tune warrant requests are still a very small minority, however. The more common approach is exemplified by Judge Gabriel Gorenstein of the Southern District of New York.

A New York judge defended a controversial order that gave the government access to all content of the Gmail account of a target in a money laundering investigation, holding that courts have long recognized the practical need for law enforcement to seize documents if only to determine whether they fall within the warrant.
As John Ribeiro's article notes, other recent decisions have found that overly broad warrant requests are stretching the Fourth Amendment to the breaking point by not limiting the time period or scope of the electronic communications being sought. The government, on the other hand, has argued (with Gorenstein echoing) that seizing months of emails is no different than cloning an entire hard drive -- another common process deployed during criminal investigations. That it's no different doesn't suddenly make it more "right" or less of a violation of privacy.

Those other decisions (one of which Gorenstein refers to in his) had no noticeable effect on the approval of this warrant, which asked for everything… and got it.
The New York court, in contrast, granted on June 11 a warrant that permitted law enforcement to obtain emails and other information from a Gmail account, including the address book and draft mails, and to permit a search of the emails for certain specific categories of evidence.
Moving on from his "lesser of two wrongs" argument, Gorenstein added that allowing the service provider to return relevant communications would likely result in important information being overlooked.
"While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so," he wrote.
While this is likely true to some extent (the decision goes on to note that criminals often use codewords to discuss illegal activity -- something private company techs may not be versed in), the warrant itself is still highly problematic.
The court did not also place any limits on the manner or time frame in which the emails should be searched or retained.
So, the government will be given a suspect's entire email account and allowed to peruse it for anything for as long as it wants to.

As we've seen just recently, this is the sort of open-ended access the government shouldn't be given. In June, the Second Circuit Court returned a decision that said the government violated a person's Fourth Amendment rights by holding onto seized information for much longer than the period stated in the warrant. Not only did the feds dig through irrelevant information (after swearing in the warrant request that it wouldn't), it continued to do so until it came across something of possible interest to another federal agency (the IRS) and forwarded the data it supposedly wasn't digging through. Gorenstein's approved warrant contains no such safeguards, which means the feds literally can't go beyond the scope of the request. It's a blank check disguised as a nod to the Fourth Amendment.

The Fourth Amendment prohibits unreasonable searches and seizures. It does not go on to say "...unless you get a warrant." The warrant process is supposed to limit unreasonable searches and seizures by forcing law enforcement to detail (in a sworn statements) the specifics of what's being sought and the efforts that will be made to limit the seizure to the scope of the investigation. There's nothing "reasonable" about this open-ended request. Gorenstein's decision places ease of law enforcement access above Constitutional rights.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    wallyb132 (profile), Jul 21st, 2014 @ 1:33pm

    Judge shopping

    I blows me away that there is no recourse what so ever for judge shopping by the government. If you or I do it, or try it, we'll get smacked down quicker than shit.

     

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    identicon
    Anonymous Coward, Jul 21st, 2014 @ 1:51pm

    The Fourth Amendment prohibits unreasonable searches and seizures. It does not go on to say "...unless you get a warrant." The warrant process is supposed to limit unreasonable searches and seizures by forcing law enforcement to detail (in a sworn statements) the specifics of what's being sought and the efforts that will be made to limit the seizure to the scope of the investigation. There's nothing "reasonable" about this open-ended request. Gorenstein's decision places ease of law enforcement access above Constitutional rights.


    And that is where the defense should start at trial. Attacking the fact that the warrant, although signed by a judge, is clearly unconstitutional since it does not "particularly describing the place to be searched, and the persons or things to be seized."

     

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    Anonymous Coward, Jul 21st, 2014 @ 2:07pm

    i don't have a problem with this. the fourth amendment only protects against, without a warrant. once the government has met that burden, by naming the gmail account belong to a specific person, i don't have any right to grant or deny parts or all of it. as far as i can tell, the government didn't try to seize all gmail accounts or name multiple companies/places in one warrant. i would like to see some due process for the destruction/return of non-responsive records on a specific time table.

    This is in no way comparable to the NSA practice of general warrants or police departments everywhere aversion to getting warrants and/or lying in order to get them.

     

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    •  
      identicon
      Anonymous Coward, Jul 21st, 2014 @ 2:50pm

      Re:

      "the fourth amendment only protects against, without a warrant"

      Not exactly true. The fourth amendment protects against general warrants as well. There are specific criteria that has to be met for the warrant to be constitutional.

       

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      Quiet Lurcker, Jul 21st, 2014 @ 3:55pm

      Re:

      Even by current jurisprudence, this is overly broad. As far as I know, e-mail conversations with certain classes of professional - physicians and church pastors come immediately to mind. The judge didn't even exclude THAT from the warrant.

      No, if anything, this is even worse than NSA spying. At least their pretext could be seen as a fig leaf.

       

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        Eldakka (profile), Jul 21st, 2014 @ 9:43pm

        Re: Re:

        e-mail conversations with certain classes of professional - physicians and church pastors
        and lawyers.

        Going by this warrant, if you want to know a defendants legal strategy, just ask for a warrant for all their emails, then read all their emails between them and their lawyers.

         

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    •  
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      nasch (profile), Jul 24th, 2014 @ 10:32am

      Re:

      the fourth amendment only protects against, without a warrant.

      "The right of the people to be secure in their persons, houses, papers, and effects,[a] 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."

      No unreasonable searches, AND a warrant must particularly describe the things to be seized. Not no unreasonable searches UNLESS you get a warrant. So the question is whether this search was reasonable, and whether the warrant was particular enough to satisfy the 4th Amendment. Both points have to pass, and this judge, like you, has no problem with the search.

       

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    ChurchHatesTucker (profile), Jul 21st, 2014 @ 2:22pm

    Might as well

    They're going to look through it anyway...

     

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  •  
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    That Anonymous Coward (profile), Jul 21st, 2014 @ 3:17pm

    Someday after the fires are out, the dead are buried, we will look back on these times and wonder why the fuck no one stood up for the laws & rights we claimed we had.

     

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    •  
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      Padpaw (profile), Jul 21st, 2014 @ 4:42pm

      Re:

      Most people are stupid enough to believe the propaganda "it can't happen here". Interestingly enough from what I have read about the lead up to ww2, the Germans thought the same thing. 1 of the reasons why they blindly followed their leaders.

       

      reply to this | link to this | view in chronology ]

      •  
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        Uriel-238 (profile), Jul 21st, 2014 @ 4:48pm

        Sooner or later...

        Each of us gets to wear the judengelb.

        And sadly and more horrifically, each of us will voluntarily wear the swastika.

         

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        uRspqF7L (profile), Jul 22nd, 2014 @ 6:10am

        Re: Re:

        when you say "it can't happen here," you mean that the US has always been a Nazi police state and we've always been living under it, and just not realized it? Masnick is (very inaccurately) describing the law that has been in place in the US from the beginning--and as usual, leaving out what he even relies on--the discretion and judgement of JUDGES to decide whether evidence collection complies with the 4th Amendment--to make his case that we should have no law enforcement when it comes to Google.

        It's bullshit. This isn't Nazi Germany, it's no cause for outrage, yes some aspects of the law may need adjustment, as they always have and always will, but this goes way, way over the top.

         

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          Anonymous Coward, Jul 24th, 2014 @ 6:41am

          Re: Re: Re:

          No, this isn't Nazy Germany, but there is plenty of cause for outrage, and many, many direct correlations to pre-WWII Germany. Just blindly taking faith that there are not is saying 'it couldn't happen here.' We all know that it can.

           

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          nasch (profile), Jul 24th, 2014 @ 10:34am

          Re: Re: Re:

          to make his case that we should have no law enforcement when it comes to Google.

          I must have read a different article. Where did he make that case? Or suggest that judges shouldn't be involved?

           

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  •  
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    ECA (profile), Jul 21st, 2014 @ 3:25pm

    WOW,

    But can we POSt all the BS from the PAST of an official/politician/person running for office???
    HOW about the idiots that have had 20-40 years of work in gov. jobs that surround those we elect??

     

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  •  
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    Gracey (profile), Jul 21st, 2014 @ 3:31pm

    Another good reason not to leave your emails stored in online storage vaults.

     

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    Uriel-238 (profile), Jul 21st, 2014 @ 4:17pm

    I can't imagine Google liking this at all.

    I do wonder how this will impact Google or any other online mail storage providers.

    I expect that Google is wondering the same thing. They've already decided that being compromised to the NSA is bad for business.

    Has Google had time to either capitulate or to pen an objection?

     

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  •  
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    Uriel-238 (profile), Jul 21st, 2014 @ 4:28pm

    For some reason my prior comment god witheld for moderator review.

    Was it because I mentioned Google?

    Google, Google, Google, Google, Google.

     

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  •  
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    Uriel-238 (profile), Jul 21st, 2014 @ 4:30pm

    Two comments have been witheld.

    Am I not allowed to talk about that Most Popular Search Engine By Name?

    Gòõg1ê.

     

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  •  
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    Padpaw (profile), Jul 21st, 2014 @ 4:40pm

    "We don't need no stinking constitution, were the government. We decide what is best for people and crush anyone that disagrees with us".

    Springs to mind every time something like this comes up.

     

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    identicon
    Anonymous Coward, Jul 21st, 2014 @ 6:42pm

    Re: I can't imagine Google liking this at all.

    The solution is using the email account only for exchange of URLs to messages stored off site.

    If the only contents of the mail is Click here on xxx.com/abcqrz to read your message, and the message expires after a short time the government only gets a dead link to a deleted message on an offshore server.

    One could further obfuscate the actual URL hosting the message by using a link redirector.

    of course, the government could try to subpoena the message contents from the hosting provider, but if the warrant is issued a month after the message is read it's likely that all records are gone.

    The hosting provider can be any free service offering file, text or image sharing.

     

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    uRspqF7L (profile), Jul 22nd, 2014 @ 6:06am

    here we go

    please keep this up. your expertise on law enforcement and warranted searches is remarkable.

    other than ending the US government (which is specifically and exactly what you are asking, with your bizarre view that warrants only allow for targeted retrieval of specific items, which is 100% completely wrong) what is your solution to this problem? You are reading the Fourth Amendment to prohibit law enforcement all together, whether you realize it or not.

    EVERYTHING--EVERYTHING--you have written applies to a search warrant for the physical premises. Everything is fair game; no time periods, specific items (though what they are looking for can be specified), etc. Evidence of other crimes is ROUTINELY discovered and ROUTINELY used against the defendant. If looked at from a Murray Rothbard angle that might look like it is "coercive," but I don't know of anyone until Mike Masnick who treats it with outrage and contempt. Including courts of law and even defense attorneys.

    Your statement "The Fourth Amendment prohibits unreasonable searches and seizures. It does not go on to say '...unless you get a warrant.' The warrant process is supposed to limit unreasonable searches and seizures by forcing law enforcement to detail," is absolutely, positively, clearly wrong in every way. Think of this: police routinely get warrants for suspicion of selling one drug, and find another. and guns. and stolen items. Guess what? They prosecute ALL of it, and--MOST IMPORTANTLY--judges do NOT throw the evidence out because it violates 4A. Warrantless searching is what is "unreasonable." The warrant makes it "reasonable." I note you cite no case law or statue to back up this hilarious and arch reinterpretation of 200+ years of US (and also common) law, because you can't.

     

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      Zonker, Jul 22nd, 2014 @ 5:38pm

      Re: here we go

      You might try reading the legal analysis on the Fourth Amendment from Cornell University Law School on the subject that contradicts your opinion that general warrants are somehow constitutional or routine.

      http://www.law.cornell.edu/wex/fourth_amendment

      On that link I believe you will find the "case law or statute" that backs up the Fourth Amendment interpretations made in this article you claim can't be cited.

       

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      identicon
      Anonymous Coward, Jul 24th, 2014 @ 6:44am

      Re: here we go

      They prosecute on other drugs and weapons found during a warrant search only if those items are 'in clear and plain view.'

       

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      nasch (profile), Jul 24th, 2014 @ 10:39am

      Re: here we go

      your bizarre view that warrants only allow for targeted retrieval of specific items, which is 100% completely wrong)

      "The right of the people to be secure in their persons, houses, papers, and effects,[a] 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."

      Huh, seems to be right there in the Constitution. How bizarre. So if you're correct, then a warrant doesn't have to particularly describe the persons or things to be seized. Has the 4th Amendment been repealed and I missed it?

       

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    identicon
    Anonymous Coward, Jul 22nd, 2014 @ 7:37am

    Just another reason to have a foreign hosted email account. Sure, it won't protect you from the NSA but it'll do well against situations like these. Until the NSA starts sharing information more readily with local law enforcement.

     

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    TOPDOG1 (profile), Aug 8th, 2014 @ 6:46pm

    ONE RING CIRCUS

    One of many judges or magistrates, this one called Judge Gabriel Gorenstein of New York has turned the court into circus act. These people are allowed to make undisputed rulings contrary to any and all American ideals,or even common sense, without any constitutional controls. Persons like this should be disbarred and driven from practicing law. Even ambulance chasers are more mindful of citizens rights. All his rulings need to be repealed. Like the greedy and corrupt corporate puppets who infest our political system, these greedy and corrupt judges infest our court rooms. There is no way to dispute their erroneous acts. The Boards who are supposed to oversee them are not doing their job.PLEASE HELP TO GET THESE VILLAINS WITH ROBES DISBARRED.

     

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