Judge Overturns Denied Email Search Warrant, Says Gov't Can Get It All, Dig Through It Later

from the the-particularity-of-'every-email-in-the-account' dept

The "Magistrate's Revolt" was fun while it lasted. Post-Snowden, a few magistrate judges began viewing law enforcement's electronic search warrant applications with a bit more skepticism. These judges also rolled back a bit of the deference extended to the federal government, forcing the DOJ to narrow search requests or drop gag orders.

The first flames of the revolt to be snuffed out occurred in a DC district court -- the same district where "In re Sealed Case" is the most common docket entry -- when Judge Richard Roberts overrode two decisions by magistrate judge John Facciola. The deference to "government knows best" was reinstated and the feds got their gag order and broad search requests approved.

The same thing is happening in the center of the country. Orin Kerr of the Volokh Conspiracy reports that a Kansas district court judge has reversed magistrate judge David Waxse's denial of an email search warrant.

In March, Waxse handed down a decision rejecting a warrant to search several Hotmail email accounts on the ground that the two-step procedure used to execute email warrants violated the Fourth Amendment. Under the procedure, the warrant orders the service provider to hand over the entire account; the government then searches the entire account for the information sought in the warrant. Echoing his decision from 2015 about cellphone searches, Waxse held in March that this two-step procedure violates the Fourth Amendment particularity requirement unless the government includes a sufficient set of ex ante search protocols guiding the warrant.

So much for that. Kansas district judge Carlos Murguia has decided [PDF] that a request for the entire contents of an email account is "sufficiently particular."

In applying the law to the warrant at issue, this court concludes it was clearly erroneous or contrary to law for Judge Waxse to find it was not sufficiently particular. The warrant application identified with specificity the target email accounts to be searched and the evidence to be seized in connection with violations of 18 U.S.C. §§ 371 (conspiracy), 1029 (access device fraud), 1030 (computer intrusion), 1343 (wire fraud), and 2319 (copyright infringement), all occurring since September 7, 2008. The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant. The application also included an affidavit detailing the criminal scheme and explaining the relevance of the evidence to the investigation. Rule 41(e)(2) authorizes the “seize first, search second” two-step process, thus allowing the government to obtain all of the data to later search for relevant evidence. And while Rule 41(e)(2) leaves open the question of particularity when the government seeks ESI, the majority of case law relating to the search of an email account has upheld the Government’s ability to obtain the entirety of the account to then search for relevant evidence. Based on the current state of the law, this court finds Judge Waxse’s decision regarding particularity was clearly erroneous or contrary to law.

The district court judge finds the government's affidavit is lacking in probable cause, which means the government won't get to use this particular warrant, but it will no longer have to battle Judge Waxse in the future for permission to grab everything.

Judge Murguia also looked at various ex ante search restrictions Waxse suggested and basically says it's up to the government to decide whether or not to incorporate these.

Although Judge Waxse included many options in his order, these were simply suggestions for the government in the future, not court-ordered ex ante instructions for the issuance of this specific warrant. Had Judge Waxse, for example, provisionally granted the warrant under the premise the government would submit a search protocol, or had he granted the warrant but ordered the use of a special master to search the data seized from the Provider, this court could then review those court-ordered ex ante limitations for reasonableness. Because no ex ante instructions were ordered, this court has nothing to review, and to comment on the reasonableness of each suggested limitation would result in this court issuing an advisory opinion.

Presumably the government will continue to operate without the suggested restrictions. The door isn't shut on magistrates imposing further restrictions on granted searches, but chances are these will be removed by sympathetic judges at the district level.

That being said, Judge Murguia isn't completely blind to the implications of "seize first, search later" warrants.

This court first acknowledges Judge Waxse’s concern with properly balancing an individual’s right to privacy with the government’s ability to effectively prosecute criminals. The digital storage era has caused a need for courts to reevaluate well-established Fourth Amendment standards.

Unfortunately, that reevaluation will have to wait for another day… and another challenge more specifically suited to address the issue at hand.

Filed Under: 4th amendment, search, warrants


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  • icon
    DannyB (profile), 5 Oct 2016 @ 1:17pm

    Re-evaluate?

    The digital storage era has caused a need for courts to reevaluate well-established Fourth Amendment standards.
    You can re-evaluate standards, but you can't re-evaluate the meaning.

    The meaning is that government is supposed to be searching for a specific thing named in the warrant.

    The problem in practice is that they can keep the trove of data, and then search and re-search it again for different search items NOT named in the original warrant. When they search your home, they may be able to search everything, every room, every drawer, etc -- just as being to search EVERY email in the account. But they can't take your home with them to search later.

    Maybe they should be able to grab everything. But if so, then they definitely should NOT be allowed to search later. It's search NOW, for the specified items, then destroy the data.

    But it won't happen. Hanging on to that data is just too tempting. Even if they were required to delete it, they won't. It's like a drug.

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

    • icon
      Whatever (profile), 5 Oct 2016 @ 9:19pm

      Re: Re-evaluate?

      "The meaning is that government is supposed to be searching for a specific thing named in the warrant."

      " But they can't take your home with them to search later."

      Actually, they can take everything except the home, if they feel it may have probative value in relation to the given search warrant. As an example, the warrant could specific "all contents of filing drawers in Mr Smith's office" without having to specific a single document or set of documents. That is not unreasonable or non-specific. The filing cabinet itself (and contents thereof) are generally considered specific.

      For email, saying "all email sent to and from hotmail account X" is specific. Non-specific would be "all email sent to and from hotmail". Narrowing things down to a single account (or group of accounts) means that they are specifically reviewing an infinitesimally small and specific part of the mail hotmail sends and receives.

      "Maybe they should be able to grab everything. But if so, then they definitely should NOT be allowed to search later. It's search NOW, for the specified items, then destroy the data."

      Once something is entered into evidence as part of an investigation, it generally isn't tossed out after the first time it is examined. Legally obtained, it can retained for as long as the case is open (even as a cold case). Retaining the email would be no different then retaining the content of the file cabinet. If obtained thorugh a legal and valid warrant, there is no reason to dispose of it, nor any legal basis under which the police cannot return and re-examine the materials obtained through the warrant.

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

      • icon
        art guerrilla (profile), 6 Oct 2016 @ 3:20am

        Re: Re: Re-evaluate?

        you authoritarian tool, did you or did you not just read the story about the feebs DESTROYING (based on a side agreement!) the laptops of hellary's aides WHICH THE CONGRESSIONAL COMMITTEE had already said they wanted preserved as evidence ? ? ?
        you are disgusting in your abject obeisance to Empire... have you gotten fitted for your brown shirt yet ? ? ?
        scumbag...

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

      • icon
        That One Guy (profile), 6 Oct 2016 @ 4:09am

        Re: Re: Re-evaluate?

        Your analogy falls apart when you consider that a 'filing cabinet' is something that only has so much space, and as such people decide what they want to put into it, they can't just throw everything they get into it. There's also a difference in that most people are going to toss records or mail if they don't have a use for it, while I imagine most people just let their old emails pile up, because why delete them if you don't have to? As a result after a while an email account is likely to have personal emails, professional, emails tied to various accounts elsewhere, financial related emails and many others.

        As such a more accurate comparison would be along the lines of 'All mail to and from person X that took place since they moved to their current address', or perhaps 'All documents owned by person X', neither of which are even close to 'specific'.

        If 'every communication sent or received using this account at any point in time' is considered 'specific' then the word becomes meaningless, and you might as well toss the pretense that it's a requirement at all.

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

        • icon
          Whatever (profile), 6 Oct 2016 @ 5:33am

          Re: Re: Re: Re-evaluate?

          I would disagree.

          First and foremost, mail accounts generally do have limits. they are often very high, but limits do exist. Also, we don't tend to keep all of our emails, deleting many (including the tons of spam) and retaining only a select few - in the same exact manner that one might keep their snail mail correspondence in a filing cabinet.

          The thing is, in your own home, your letters and such do tend to be mixed together anyway. Your electricity bill is next to your jury duty notice, that parking ticket reminder right next to the spam for the local super market. We by our very nature mix our personal and business lives, and in modern times they are often one and the same. It would be no different than calls placed on a phone line that was subject to a listen warrant. If it's your personal line but you also conduct business on it, the police have full rights to record and retain those conversations as well.

          Think of it perhaps better explained as "contents of storage locker" or "documents located in office on second floor". Email is not magically or somehow special, it's just another way to communicate, no different in reality from placing a phone call, sending a cable, or using the pony express.

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

          • identicon
            Anonymous Coward, 11 Oct 2016 @ 9:58pm

            Re: Re: Re: Re: Re-evaluate?

            Ah, the old "forever minus a day is limited times" defense. Small wonder you're here salivating at the gums.

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

  • identicon
    David, 5 Oct 2016 @ 1:52pm

    Fabulous.

    The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant.

    That's like seizing a bank account and handing control of it to a shopkeeper because of an unpaid pack of chewing gum. Sure, the reason for the seizure is specific. But the transfer of power and control isn't.

    Civil asset forfeiture shows us how these "screw you first but pull out later" schemes work and why they are a mockery, and that's exactly why the Constitution bars them and why the police is happy when they get a court to tell them it's fine for them to ignore what the Constitution says.

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

  • identicon
    I.T. Guy, 5 Oct 2016 @ 1:53pm

    "The digital storage era has caused a need for courts to reevaluate well-established Fourth Amendment standards."

    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.


    They are well established for a reason. It's really hard not to invoke Godwin's law here.

    The crafters of the bill of rights knew damn well about the future and here it is in 2 words:
    and effects

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

  • icon
    That One Guy (profile), 5 Oct 2016 @ 2:47pm

    Goodbye modern warrants, hello colonial writ of assistance

    The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant

    "They are operating under strict boundaries as to what they can search, they're only allowed to searched through every email in this account, rather than every email ever sent or received by any account."

    The entire point of the Fourth was to prohibit general warrants like this, where anything could be searched at whim to look for evidence with no time limit as to how long the 'search' may take place.

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

  • identicon
    Personanongrata, 5 Oct 2016 @ 3:31pm

    Aiding and Abetting

    The digital storage era has caused a need for courts to reevaluate well-established Fourth Amendment standards.

    When were the courts granted the power to amend the US Constitution?

    When federal court jesters can use expedient motives in order to parse the plain English that was used to draft the Constitution every citizens liberties are placed at risk and the very fabric of the republic is torn asunder.

    How effective are federal court jesters Richard Roberts and Carlos Murguia in acting as checks on abuses of power by the executive/congress?

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

    • icon
      DannyB (profile), 6 Oct 2016 @ 6:59am

      Re: Aiding and Abetting

      The courts can be very effective at checking abuses of power.

      For instance the court can ORDER that the warrant be narrowed to be strictly limited to searching only emails in existence and excluding any non existing emails.

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

  • identicon
    dr evil, 5 Oct 2016 @ 4:00pm

    the solution is to make CIVIL interaction with law enforcement illegal.. but then again, allow me to sue them civilly...

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

  • icon
    Padpaw (profile), 5 Oct 2016 @ 4:44pm

    loyal citizens don't need rights, only the traitors don't trust their government to protect them from abuse.

    Naturally if you try and defend your rights you must be a traitor and thus deserve no protection.

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

    • icon
      That One Guy (profile), 5 Oct 2016 @ 5:48pm

      Re:

      That may have been a poe but I do in fact remember an article or perhaps just a comment below it where 'asserting your rights' was treated by the police as suspicious and/or indicative of criminal intent. A good, law abiding citizen after all would never question or tell the paragons of virtue and lawfulness that are the police 'no' after all.

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

      • icon
        Wyrm (profile), 7 Oct 2016 @ 12:48am

        Re: Re:

        And that reminds me in turn of that other cop who wrote a tribune, saying citizens should comply to any demand from a cop. Not because the cop is right and just and trying to help. No, his argument was that the cop is armed and dangerous, so you better comply to not get hurt.
        Strangely, he didn't get much sympathy from the readers. Talking like a thug trying to rob you at gunpoint does that sometimes.

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

  • identicon
    Anonymous Coward, 6 Oct 2016 @ 4:47am

    Judge Richard Roberts

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

  • identicon
    Anonymous Coward, 6 Oct 2016 @ 8:48am

    Encrypt it all.

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


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