Another participant in the Magistrate's Revolt
appears out of the unlikeliest of districts: Alaska. The court order, first pointed out by ACLU's chief tech sorcerer
, Chris Soghoian, features Judge Kevin McCoy telling the government to take its overly-broad search warrants and hit the road. Well, mostly. The order is without prejudice, which means the government still has options available, but from what's stated by the judge, it won't be the latest option the government deployed.
The case details are a bit thin. With the exception of this court order
, the rest of the documents are under seal. It deals with an investigation of Craigslist ads allegedly soliciting sexual contact with minors. The ad was reported to authorities by a Craigslist user. Law enforcement officials detained the person who placed the ad, who then admitted to being in possession of child porn, as well as being interested in sexual relations with children.
With the perp nailed down, law enforcement went after those who answered the ad. A subpoena turned up six Gmail addresses, as well as the dates and frequency of contact with the email address linked to the offending ad.
Four of the six email addresses obtained received either a single response or no response from the Craigslist poster, suggesting a lack of ongoing negotiations for the sexual services of a minor. The other two, however, received multiple responses, suggesting negotiations had moved ahead.
Law enforcement then sought to obtain the content of the messages to the Yahoo email address of the detained suspect. That's where it ran into trouble. Rather than narrow its demands to the two accounts with the most activity, it requested content from all ad respondents. It did, however, specify a date range specifically surrounding the posting of the ad. This was approved by a magistrate judge and served to Google.
Google turned the warrant down, citing technical difficulties..
We have received your Search Warrant and after evaluating the items to be seized, we have determined that Google is not capable of identifying the specific records responsive to your request as currently described in the warrant. Because our production must adhere to the stated limits of the warrant, and we are unable to do so in this case, we require amended or re-issued process.
That's when things started to go a bit sideways.
Rather than seek an order compelling Google to comply with the original warrant, the government presented the Court with a second application. The agent explained that “Google was unable to comply with the warrant as written because the time frame was too narrow,” “Google is unable or unwilling to parse individual accounts for” the specific emails, and “Google typically provide[s] broad ranges of information and place[s] the burden on the law enforcement officer searching the information to stay within the parameters of the warrant.”
Perhaps Google was bluffing or it was simply tired of "providing broad ranges of information" to every government agency that came knocking. Whatever the case, the government's next move suggests it was stunned by Google's (apparently out-of-character) refusal… or its somewhat unbelievable claim that "records" from that time period simply could not be located. The government already had a judge clear the previous warrant application and give it the Fourth Amendment thumbs-up. It would have been incredibly simple to approach the same judge for a court order compelling the release of the records. What it did instead was strip the Fourth Amendment-friendly language from the previous application and present it to a different magistrate judge.
[T]he government’s second warrant requests authorization to seize the six third-party Gmail accounts in their entirety. Once the contents of the accounts are in its possession, the government appears to promise not to look at any emails outside the applicable date ranges. However, the warrant would not limit its ability to search the entirety of the Gmail accounts as the proposed warrant plainly authorizes the inspection of all email content in the accounts without regard to how remote in time or unrelated that content is to the current investigation.
So, to "fix" a Fourth Amendment-compliant warrant -- one that sought specific emails from a very narrow time frame -- the government went the other way, basically saying, "The hell with it. Give us EVERYTHING." Judge McCoy seems somewhat astounded by the government's Plan B: a 90% breathtaking audacity/10% vindictiveness warrant app that came nowhere near even the most minimal
of Fourth Amendment standards.
Based on these probable-cause conclusions, a narrow intrusion into the email accounts is warranted. But the present application goes well beyond the narrow intrusion justified by the probable cause showing. It seeks judicial authorization to seize and then search the entire content of the six third-party Gmail accounts with no justification other than that Google has unilaterally elected not to comply.
In less subtle terms, the government behaved like a child when it was told, "No." Judge McCoy's order tells the government to grow up.
[T]he Court reiterates that the government has two alternative avenues through which to seize and search the sought-after emails. First, the government remains free to seek an order compelling Google to comply with the earlier warrant provided it limits the request to email content for the narrowly defined periods relevant to the investigation of the six third-party Gmail accounts. Alternatively, the government can renew the instant application provided it proffers to seal, without any review absent further court order, material supplied by Google that is outside the time period for which probable cause has been established.
Do it right or don't do it at all. At the very least, don't swing from one end of the Fourth Amendment spectrum to the next just because the warrant recipient doesn't immediately comply. Turning a narrow warrant into a general warrant is no way to run a law enforcement agency. And stomping all over the rights of others just because you're pissed off at being refused is no way to treat the people who pay your salaries.