“Time works changes, brings into
existence new conditions and purposes. Therefore a principle to be vital must
be capable of wider application than the mischief which gave it birth.”
Introduction
In
1928, with uncanny prescience and profound wisdom, United States Supreme Court
Justice Louis Brandeis made the following observation in his famously exquisite
dissenting opinion in Olmstead v. UnitedStates:
Moreover, “in the application of a
constitution, our contemplation cannot be only of what has been but of what may
be.” The progress of science in furnishing the Government with means of
espionage is not likely to stop with wire-tapping. Ways may some day be
developed by which the Government, without removing papers from secret drawers,
can reproduce them in court, and by which it will be enabled to expose to a
jury the most intimate occurrences of the home.
Olmstead v. United States, 277 U.S. 438, 473-474 (1928) (Brandeis, J., dissenting). In Olmstead, the United States Supreme
Court, applying a property-based interpretation of the Fourth Amendment, held
that there was no constitutional violation for warrantless wiretapping of the
defendant’s phone because there had been no physical intrusion of the defendant's property – a decision that took nearly 40 years to overturn in Katz v. United States, 389 U.S. 347(1967).
The day Justice Brandeis
predicted has arrived. Although the government routinely seizes computers as
part of a criminal investigation, the government can also obtain all of a
person’s emails and other online documents maintained by third-party providers
(Google, Yahoo, AOL, etc.) and reproduce them in court, without ever entering a
person’s home.
Electronic data
provides the most intimate look at a person’s life – far more intimate than a
search of a person’s home or office would reveal. As Judge Kleinfeld of the United States Court of Appeals for the Ninth Circuit has observed:
for most people, their computers are
their most private spaces. People commonly talk about the bedroom as a very
private space, yet when they have parties, all the guests including perfect
strangers-are invited to toss their coats on the bed. But if one of those
guests is caught exploring the host’s computer, that will be his last
invitation.
***
Emails and history links may show that
someone is ordering medication for a disease being kept secret even from family
members. Or they may show that someone’s child is being counseled by parents
for a serious problem that is none of anyone else’s business. Or a married
mother of three may be carrying on a steamy email correspondence with an old
high school boyfriend. Or an otherwise respectable, middle-aged gentleman may
be looking at dirty pictures. Just as a conscientious public official may be
hounded out of office because a party guest found a homosexual magazine when
she went to the bathroom at his house, people’s lives may be ruined because of
legal but embarrassing materials found on their computers.
United States v. Gourde, 440 F.3d 1065, 1077 (9th Cir.2006) (Kleinfeld, J., dissenting) (cited in In the Matter of an Application for a Search Warrant to Seize and Search Electronic Devices from Edward Cunnis, 770 F. Supp. 2d 1138, 1144 (W.D. Wash. 2011)). See also
Riley v. California, 134 S. Ct. 2473,2489, 189 L. Ed. 2d 430, 446, 2014 U.S. LEXIS 4497 *34 (2014) (“The term ‘cell phone’
is itself misleading shorthand; many of these devices are in fact minicomputers
that also happen to have the capacity to be used as a telephone. They could
just as easily be called cameras, video players, rolodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or newspapers.”).
As Justice
Brandeis realized in 1928 when considering the relatively new technology of the
telephone, search and seizure law must always keep up with advances in
technology, just as when the “telephone instrument” (a quaint term used in Olmstead) became popular and the
government began using wiretapping as an investigative tool. It took 39 years
for Fourth Amendment law to catch up with telephone technology, with the
Supreme Court’s decisions in Katz v.United States, 389 U.S. 347 (1967) and Berger v. New York, 388 U.S. 41 (1967) and the enactment of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, which established strict
protocols for the government to follow when wiretapping a telephone. Similarly,
electronic data searches present new issues for courts and it seems that we are
still in the early stages of that body of case law.
The practical
realities of an electronic search often mean that electronic data that falls
outside the scope of the search warrant is seized by the government so that it
can be searched at a later time. This leaves voluminous, private,
non-responsive electronic data in the hands of the government after the search
has been concluded. Courts have begun to provide guidance on how electronic
searches should be conducted, especially how the government should handle
non-responsive electronic data.
1. Pump
Up the Volume: Seize First – Search Later
An issue in
almost every electronic search is how the government can search voluminous
electronic data without violating the overbreadth and particularity
requirements of the Fourth Amendment.
When the
government obtains a search warrant for voluminous paper records, courts permit
the backwards protocol of seizing all of the documents first and then searching
for the responsive documents later, out of practical necessity. See, e.g.,
Doane v. United States, 2009 U.S.Dist. LEXIS 61908 *27 (S.D.N.Y. 2009) (“Several courts have upheld the
reasonableness of the wholesale seizure of folders or boxes of documents
without an on-site examination of every individual document to determine if it
fits within the scope of the warrant.”) (collecting cases).
This type of
backwards search protocol is often used to search and seize computer records
and emails, since nearly every electronic search includes voluminous data that
cannot be identified as responsive to the search warrant at the time of the
search. See United States v. Vilar, 2007 U.S. Dist. LEXIS 26993 *113 (S.D.N.Y.2007) (“’it is frequently the case with computers that the normal sequence of
‘search’ and then selective ‘seizure’ is turned on its head,’ as computer hardware
is seized from a suspect’s premises before its content is known and then
searched at a later time.” (quoting Inthe Matter of the Search of: 3817 W. West End, First Floor Chicago, Illinois60621, 321 F. Supp. 2d 953, 958 (N.D. Ill. 2004)); United States v. Metter, 860 F. Supp. 2d 205, 213 (E.D.N.Y. 2012)
(“Unlike warrants seeking readily identifiable evidence such as narcotics or
firearms, an onsite search of a computer for the evidence sought by a warrant is
not practical or even possible in some instances.”); In the Matter of a Warrant for All Content and Other InformationAssociated with the Email Account XXXXXXX@Gmail.com Maintained at Premises Controlled by Google, Inc., 2014 U.S. LEXIS98008 **14-17 (S.D.N.Y. 2014) (“The need to permit the Government to examine
electronic materials off-site rather than require it to conduct an on-site
search is most obviously demonstrated in the case of a search of a computer
hard disk drive (‘hard drive’), which is the part of a computer that actually
stores files and documents.”) (collecting cases).
The “seize
first-search later” method is specifically authorized by Rule 41 (e)(2)(B) of
the Federal Rules of Criminal Procedure, which provides:
(B) Warrant Seeking Electronically
Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure
of electronic storage media or the seizure or copying of electronically stored
information. Unless otherwise specified, the warrant authorizes a later review
of the media or information consistent with the warrant. The time for executing
the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site
copying of the media or information, and not to any later off-site copying or
review.
Accordingly, there is no question
that the government can seize all of a defendant’s computer data and emails and
search that material at a later time. There is also no constitutional
requirement that a search warrant for voluminous electronic data contain any ex
ante search protocols.
2. Search
Warrants For Electronic Data Do Not Require a Search Protocol
Unlike the
wiretapping protocols established by Title III (e.g., minimization, limited time duration, sealing, notice),
searches of electronic data do not require any ex ante search protocols. Justice
Alito, however, at the end of his concurring opinion in Riley v. California, 134 S. Ct. 2473, 2497-98, 189 L. Ed. 2d 430,2014 U.S. LEXIS 4497 (2014), which held that a warrant is required to search a
suspect’s cell phone incident to arrest, noted that “because of the role that
these devices have come to play in contemporary life, searching their contents
implicates very sensitive privacy interests that this Court is poorly positioned
to understand and evaluate” and encouraged that “Legislatures, elected by the
people, are in a better position than we are to assess and respond to the
changes that have already occurred and those that almost certainly will take
place in the future.” Justice Alito specifically referenced the fact that
Congress responded with Title III following the Supreme Court’s decision in Katz, hinting the Congress should likewise
legislate search protocols for electronic searches.
A framework for
what protocols for electronic searches might look like was presented in United States v. Comprehensive Drug TestingInc., 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam) (“CDT III”). In CDT III, the United States Court of Appeals for the Ninth Circuit
suggested “guidelines” for the government to follow in the search and seizure
of electronic evidence.
In CDT III, the government obtained search
warrants and a grand jury subpoena for a company called Comprehensive Drug
Testing, Inc., which maintained a confidential list of Major League Baseball
players who had tested positive for steroids. Although the warrant sought
records for only ten players, the government obtained comingled drug test
records of hundreds of baseball players and other professional athletes, far
beyond the warrant’s scope, and sought to use that information to conduct
additional investigations.
The Ninth
Circuit recognized the dangers of “over-seizing” electronic records that could
render a search unreasonably broad:
We recognize the reality that
over-seizing is an inherent part of the electronic search process and proceed
on the assumption that, when it comes to the seizure of electronic records,
this will be far more common than in the days of paper records. This calls for
greater vigilance on the part of judicial officers in striking the right
balance between the government’s interest in law enforcement and the right of
individuals to be free from unreasonable searches and seizures. The process of
segregating electronic data that is seizable from that which is not must not
become a vehicle for the government to gain access to data which it has no
probable cause to collect.
The Court
ultimately relied on issue preclusion to affirm suppression of the data that
exceeded the warrants’ scope. In a concurring opinion, however, Chief Judge
Kozinnski recommended a set of “procedures and safeguards” that “strike a fair
balance” between the needs of law enforcement when conducting electronic
searches and seizures and the protections of the Fourth Amendment:
1. The government should waive reliance
upon the plain view doctrine in digital evidence cases.
2. Segregation
and redaction must either be done by specialized personnel or an independent
third party, who must not disclose to the investigators any information other
than that which is the target of the warrant.
3. Warrants
and subpoenas must disclose the actual risks of destruction of information as
well as prior efforts to seize that information in other judicial fora.
4. The
government’s search protocol must be designed to uncover only the information
for which it has probable cause, and only that information may be examined by
the case agents.
5. The
government must destroy or, if the recipient may lawfully possess it, return
non-responsive data.
Id. (citations omitted).
Chief Judge Kozinski’s protocols
were originally in the Ninth Circuit’s first en banc decision in United States v. Comprehensive Drug Testing,Inc., 579 F.3d 989 (9th Cir. 2009) (en banc) (“CDT II”) and seemingly imposed a protocol requirement
on the government. The search protocols were relegated to mere suggestions when
then-Solicitor General of the United States, Elena Kagan, sought “super en banc” review by the entire Ninth Circuit. In the
Ninth Circuit, there are so many judges (28) that en banc review is only conducted
by a randomly-selected 11-judge panel, not all 28 judges. Therefore, Kagan
sought review by all 28 judges on the ground that the mandatory search
protocols exceeded the Article III court’s proper role [and made the
government’s job more difficult]. Perhaps getting the hint, the Ninth Circuit
granted rehearing en banc by the same 11-judge panel and issued a per curiam
opinion identical to first en banc opinion, but moving Chief Judge Kozinski’s
protocols to a merely advisory concurring opinion.
Since then, most electronic search
cases decided after CDT III do not
require a search warrant to include an ex ante search protocol. See In the Matter of a Warrant for All Content and Other Information Associated withthe Email Account XXXXXXX@Gmail.com Maintained at Premises Controlled by Google, Inc., 2014 U.S. LEXIS 98008 **36-37 (S.D.N.Y. 2014) (citing the
Sixth, Tenth, and Eleventh Circuits); see
also United States v. Dupree, 2011 U.S. Dist. LEXIS 28070 *98 (E.D.N.Y.2011) (“the government is not required to include in its application for a
search warrant a search protocol, enumerating the methods that the government
might use to search computers”); but see
United States v. D’Amico, 734 F.Supp. 2d 321 (S.D.N.Y. 2010) (noting that while “it does not appear that any
district court decision in this Circuit has embraced CDT”…“certain aspects of the
CDT protocol seem sensible”); see also In re: [REDACTED]@gmail.com, No. 5:14-mj-70655 (PSG) (N.D.Cal. 2014) (noting that courts are required, ex ante, to approve the reasonableness of a computer search and rejecting warrant application for failure to include date restriction and for not requiring the government to return or destroy non-responsive documents).
On December 30, 2014, in In reSearch of Cellular Telephones within Evidence Facility Drug EnforcementAdministration, 14-MJ-8017 (D. Kansas) (DJW), Magistrate Judge Waxse denied
the government’s application for search warrants for five cell phone because
the search warrant lacked a search protocol. The Court issued its longest (27
pages) and most comprehensive discussion of the applicable legal issues
involved. The opinion includes a substantial discussion of United States v. Ganias, 2014 U.S. App. LEXIS 11222 (2d Cir. 2014).
One notable exception is a series of decisions by the Honorable David J. Waxse,
United States Magistrate Judge for the District of Kansas, who has denied repeatedly
the government’s applications for search warrants for both cell phones and
email accounts where the government failed to include a search protocol or provided one the Court considered inadequate.
On September 21, 2012, in In re Search Warrants for Info. Associated with Target Email Address,
2012 U.S. Dist. LEXIS 138465 (D. Kansas)(Waxse, M.J.), Magistrate Judge Waxse denied the government’s applications for
search warrants because the warrants sought disclosure of all of the target’s
emails, but did not provide any search protocol to place any limits on the
government’s review of the data, such as key word searches, appointment of a
special master, or a taint team. Magistrate Judge Waxse concluded that the
proposed warrants were overbroad. See
2012 U.S. Dist. LEXIS 138465 **32-33; see
also In re Search Warrants for Info. Associated with Target EmailAccounts/Skype Accounts, 2013 U.S. Dist. LEXIS 123129 (D. Kansas August 27,2013) (Waxse, M.J.) (an almost verbatim rehash of 2012 U.S. Dist. LEXIS
138465).
On June 26, 2014, in In re Search of Nextel Cellular Phone,14-MJ-8005 (D. Kansas) (DJW), Magistrate Judge Waxse denied a government
application to search a cell phone seized during a drug bust, because the
government provided an inadequate search protocol. Magistrate Judge Waxse
relied mostly on his own previous opinions and those of now-retired Magistrate
Judge John Facciola of the United States District Court for the District of the
District of Columbia (the reasoning behind which was rejected by Chief District
Court Judge Richard W. Roberts in In reSearch of Info. Associated with [Redacted]@Mac.com That is Stored at PremisesControlled by Apple, Inc., 14-MJ-228 (D. D.C. 2014) (RWR) (Roberts, C.J.)).
In In re Search of Nextel Cellular Phone, the government’s application
included a search methodology. Magistrate Judge Waxse concluded, however, that
the search methodology did not satisfy the Fourth Amendment’s probable cause
and particularity requirements because it sought authorization for the
“overseizure of data and indefinite storage of data” and because the
methodology was so broad that it was nothing more than a “general, exploratory
rummaging in a person’s belongings.”
On August 4, 2014, in In re Search of Three Cellphone and OneMicro-SD Card, 14-MJ-8013 (D. Kansas) (DJW), Magistrate Judge Waxse denied
the government’s application for a search warrant because it did not contain a
search methodology. The Court held that a “search protocol is required.”
Therefore, the limits of an
electronic search are established ex post. As articulated by the Supreme Court,
the Constitution “interpose[es], ex ante, the deliberate, impartial judgment of
a judicial officer” and provides “ex post, a right to suppress evidence
improperly obtained and a cause of action for damages” for an unreasonable
search.” United States v. Grubbs, 547U.S. 90, 99, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006) (quoted in In the Matter of a Warrant for All Contentand Other Information Associated with the Email Account XXXXXXX@Gmail.com Maintained at Premises Controlled byGoogle, Inc., 2014 U.S. LEXIS 98008 *27 (S.D.N.Y. 2014)). Courts are
clearly able to establish search protocols through ex post decisions. See, e.g.,
Berger v. United States, 388 U.S. 41(1967) (establishing the procedural limits of wiretapping).
3. The
Development of Ex Post Search Restrictions: United
States v. Ganias
NOTE: On June 29, 2015, the United States Court of Appeals for the Second Circuit granted the Government's motion for rehearing en banc in United States v. Ganias. Oral argument is scheduled for September 30, 2015. A copy of the Order is here.
An example of an ex post limitation of the government’s conduct in executing an electronic search is United States v. Ganias, 2014 U.S. App.LEXIS 11222 (2d Cir. 2014), in which the United States Court of Appeals for the Second Circuit held that the government violated the defendant’s Fourth Amendment rights by seizing and indefinitely retaining non-responsive computer records, and then seizing them when it later developed probable cause to search those records. The Court held that those computer records should have been suppressed and vacated the defendant’s conviction for tax evasion. In some ways, the holding in Ganias mirrors the suggested ex ante protocol in CDT III that the government must destroy or return non-responsive electronic data, although in Ganias the Second Circuit did not order the government to return or destroy the suppressed non-responsive documents.
An example of an ex post limitation of the government’s conduct in executing an electronic search is United States v. Ganias, 2014 U.S. App.LEXIS 11222 (2d Cir. 2014), in which the United States Court of Appeals for the Second Circuit held that the government violated the defendant’s Fourth Amendment rights by seizing and indefinitely retaining non-responsive computer records, and then seizing them when it later developed probable cause to search those records. The Court held that those computer records should have been suppressed and vacated the defendant’s conviction for tax evasion. In some ways, the holding in Ganias mirrors the suggested ex ante protocol in CDT III that the government must destroy or return non-responsive electronic data, although in Ganias the Second Circuit did not order the government to return or destroy the suppressed non-responsive documents.
In Ganias, the government obtained a search warrant to seize computer
data from Stavros Ganias, the accountant for two companies related to an
investigation of defrauding the United States Army and two additional search
warrants for other computers, not owned by Ganias. To execute the search, the
government made copies of all of the computer hard drives, 11 in total, 3 of
which belonged to Ganias. See United States v. Ganias, 2011 U.S. Dist.LEXIS 67806 **4-5 (D. Conn. 2011) (the underlying district court opinion). The
computer data from the 11 hard drives was copied onto 19 DVDs. Id. at*8.
The search
warrant for Ganias’ computers identified the types of documents to be seized
and listed protocols that might be used to locate them, such as surveying the
file directories, opening and reading the first few pages of files, scanning
for recently deleted files, and performing key word searches. (See UnitedStates v. Ganias, 3:08-CR-224 (EBB) (D. Conn.) Dkt. No. 108-1 – November17, 2003 Search Warrant). Beside these protocols, the search warrant was silent
as to any other protocols or safeguards to be used by the government. The
government then took 13 months to identify, isolate, and extract the computer
files responsive to the search warrant. The extracted responsive materials were
contained on a single DVD. Id. at *14. The government retained the
remaining non-responsive computer files.
The government subsequently
expanded its investigation to investigate Ganias for tax evasion and obtained a
second search warrant to search Ganias’ computer files for his personal
financial records. The second warrant was obtained nearly 2 ½ years after the
computer files were originally seized and the files would not have still
existed had the government not maintained a copy. Ganias, 2014 U.S. App. LEXIS 11222 at *8.
Ganias was indicted for tax evasion
and moved to suppress the computer files obtained from the second search. The
United States District Court for the District of Connecticut denied the motion
and Ganias was convicted of tax evasion after trial.
On appeal, the Second Circuit
reflected on the historical context of the Fourth Amendment, recalling that
‘[t]he chief evil that prompted the framing and adoption of the Fourth Amendment was the
‘indiscriminate searches and seizures’ conducted by the British ‘under the
authority of general warrants’” and that “[g]eneral warrants were ones ‘not
grounded upon a sworn oath of a specific infraction by a particular individual,
and thus not limited in scope and application.’” As the Second Circuit recalled
“[t]he Framers abhorred this practice, believing that ‘papers are often the
dearest property a man can have’ and that permitting the Government to ‘sweep
away all papers whatsoever,’ without any legal justification, ‘would destroy
all the comforts of society.’” Id. at**20-21 (all citations omitted).
Analogizing computer files to private
papers, the Second Circuit stated that “[l]ike 18th Century ‘papers,’ computer
files may contain intimate details regarding an individual’s thoughts, beliefs, and lifestyle, and
they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is
warranted.” Id. at *22 (emphasis
supplied).
From that important historical
perspective, the Second Circuit ordered suppression of the emails seized during
the second search, holding that “the Government clearly violated Ganias’ Fourth
Amendment rights by retaining the files for a prolonged period of time and then
using them in a future criminal investigation.” Id. at *31. The Court also commented that “[w]ith the Government’s
use of forensic mirror images becoming increasingly common, deterring its
unconstitutional handling of non-responsive data has grown in importance.” Id. at *39.
One significant shortcoming of Ganias, is that the Second Circuit did
not order the government to return or destroy the non-responsive computer files
it retained. The Second Circuit’s failure to order the government to return or
destroy the non-responsive computer data does not appear to be a mere oversight
because the Second Circuit suggested that the government could still use the
suppressed computer data for impeachment (“We do not hold that the Government
has waived its right to use the evidence in question for impeachment purposes.”).
Id. at *33 n.11. It is not clear from
the opinion whether the Second Circuit was referring to the suppressed (but
responsive) computer data or the non-responsive computer data as well, although
the former makes more sense. Permitting the government to use non-responsive
computer data for impeachment could prove especially troubling when it comes to
emails because they are a defendant’s own words and could have a chilling
effect on a defendant’s right testify at trial, if all of the defendant’s
emails become fair game for cross-examination.
Permitting the government to use
suppressed evidence for impeachment purposes is consistent with other Supreme
Court and Second Circuit precedent. See
James v. Illinois, 493 U.S. 307,308-09 (1990) (“the exclusionary rule does not bar the prosecution from using
illegally obtained evidence to impeach the defendant’s own testimony.”); Kansas v. Ventris, 129 S. Ct. 1841(2009) (testifying defendant may be impeached with a suppressed confession made
in violation of Massiah); Walder v. United States, 347 U.S. 62, 65(1954) (evidence obtained in violation of the Fourth Amendment can be used for
impeachment); United States v. Simels, 654 F.3d 161 (2d Cir. 2011) (permitting the government to use
suppressed wiretap conversations to impeach the defendant).
In Ganias, the non-responsive data was not the subject of the
suppression motion, since the government did not express any intention to use
that material. Retention of non-responsive computer data, however, would be
inconsistent with prior case law in the context of non-responsive paper
documents, as comprehensively summarized in Doane v. United States, 2009 U.S. Dist. LEXIS 61908 **28-30 (S.D.N.Y. 2009):
Moreover, these cases do not
contemplate the indefinite retention of all materials contained within
intermingled files. The rationale for these decisions is that where a large
number of files contain a mix of documents some of which fit a search warrant's
criteria and some of which do not, it is impractical for the executing agents
to analyze each document at the site of the search to determine whether it is
within the scope of the warrant or not. UnitedStates v. Hargus, supra, 128 F.3dat 1363; United States v. Santarelli,supra, 778 F.2d at 615-16; United States v. Regan, 706 F. Supp.1102, 1114 (S.D.N.Y. 1989)(upholding a broad warrant because if the agents had
been required to analyze each of the hundreds of thousands of documents “they
would probably still be on the premises now”); 2 Wayne R. LaFave, supra, Search& Seizure, § 4.11(a) at 776 n.9 (collecting cases). Accordingly, a number
of cases in this Circuit have held that “when items outside the scope of a
valid warrant are seized, the normal remedy is suppression and return of those
items . . . .” United States v. Matias,supra, 836 F.2d at 747; accord United States v. George, 975 F.2d 72, 79 (2d Cir. 1992); United States v. Dunloy, 584 F.2d 6, 11n.4 (2d Cir. 1978); United States v.Artieri, 491 F.2d 440, 445-46 (2d Cir. 1974); United States v. Argentina, 01 Cr. 245 (JSM), 2002 U.S. Dist. LEXIS449, 2002 WL 54602 at *1 n.1 (S.D.N.Y. Jan. 14, 2002); United States v. Longo, 70 F. Supp.2d 225, 252 (W.D.N.Y. 1999); United States v. Corcoran, 855 F. Supp.1359, 1367 (E.D.N.Y. 1994). Thus, even where practical considerations permit
the Government to seize items that are beyond the scope of the warrant, once
the fruits of the search are-segregated into responsive and non-responsive
groups, the “normal” practice is to return the non-responsive items.
Neither the Government’s research nor
my own has disclosed any authorities holding that the Government may seize
folders containing documents outside the scope of a warrant and then retain and
utilize these documents without demonstrating that they fit within one of the
recognized exceptions to the search-warrant requirement. See e.g. United States v.Slocum, 708 F.2d 587, 606 (11th Cir. 1983)(Since each of “the individual
documents contained in the file could be legitimately seized under the
plain-view exception, [the officer] acted reasonably in ordering the seizure of
the entire file.”); United States v.Tamura, 694 F.2d 591, 595-96 (9th Cir. 1982). Indeed, permitting the
Government to retain items outside the scope of the warrant without such a
showing would dramatically dilute the right to privacy in one’s personal
papers. See Andresen v. Maryland, 427 U.S. 463, 482, 96 S. Ct. 2737, 49 L. Ed.2d 627 (1976).
In Doane, the
court ordered that “documents seized by the Government do not fall within the
plain-view exception to the warrant requirement and the originals and all copies
must be returned to [the defendant].”). Id.at **44-45; see also United States v.
Collins, et al., 2012 U.S. Dist. LEXIS 111583 (N.D. Ca. 2012) (denying
government motion for reconsideration of court’s order to return all
non-responsive computer data to the defendant). There does not seem to be any
logical reason why the government should be permitted to retain indefinitely
non-responsive computer data.
4. Broadening
the Application of Ganias
The factual
scenario in Ganias is sui generis in that it is very unusual
for the government to re-search leftover non-responsive documents from a prior
search to bring new charges. So even if the government cannot use
non-responsive computer records that it held for an unreasonable length of
time, the government has little incentive to purge those files, unless there is
a stronger sanction in store.
Suppression of all computer files obtained in a search is a strong sanction that
would incentivize the government to return or destroy non-responsive computer
data. Support for that sanction is provided by the “flagrant disregard”
doctrine. Where government agents exceed the scope of a search warrant, “suppression
of all evidence seized is justified where those executing the warrant acted ‘in
flagrant disregard’ of the warrant’s terms.” United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988)
(citations omitted). “Government agents flagrantly disregard the terms of a
warrant so that wholesale suppression is required only when (1) they effect a
widespread seizure of items that were not within the scope of the warrant, and
(2) do not act in good faith.” UnitedStates v. Liu, 239 F.3d 138, 140 (2d Cir. 2000) (internal citations and
quotation marks omitted).
The first prong of this test
requires proof that the search conducted actually resembled a “general search,”
which has been described as a “wide-ranging exploratory search []” or an
“indiscriminate rummaging,” and “ha[s] long been deemed to violate fundamental
rights.” Id. at 140. In the absence of such evidence, the Court need not
address whether the agents acted in bad faith in executing the search. Id. at 142 (declining to reach issue of
whether search was conducted in good faith where first prong of test was not
met); United States v. Dupree, 2011U.S. Dist. LEXIS 28070 *111 (E.D.N.Y. 2011) (where documents outside the scope
of the warrant exceed those within its scope, the court may conclude that agents
acted with flagrant disregard of the warrant’s terms).
By definition, searches of
computers require a “wide-ranging exploratory search” of non-responsive
computer data, so it seems that the first prong of the flagrant disregard test
is easily met. In Ganias, the Second
Circuit found that this prong was satisfied when “the Government effected a
widespread seizure of files beyond the scope of the warrant -- conduct that
resembled an impermissible general search. Shi
Yan Liu, 239 F.3d at 141. For almost two-and-a-half years, the Government
retained records that were beyond the scope of the 2003 warrant, in violation
of Ganias’s Fourth Amendment rights.” Ganias,2014 U.S. App. LEXIS 11222 at **37-38.
The second prong requires a showing
that the agents did not act in good faith. In Ganias, the court concluded that “the agents here did not act in
good faith” because “the agents could not have had a good-faith basis to
believe the law permitted them to keep the nonresponsive files indefinitely.” Id. at 38-39. Accordingly, Ganias forecloses the government from
arguing that it acts in good faith when it retains non-responsive computer data
after the search has been completed.
The “flagrant disregard” rule was
applied in United States v. Metter, 860F. Supp.2d 205 (E.D.N.Y. 2012). In Metter,
the United States District Court for the Eastern District of New York
suppressed all emails and computer hard drives seized by the government because
the government waited 15 months to conduct any sort of review to segregate the responsive
data from the non-responsive data.
In Metter, the government obtained search warrants for Metter’s
computer data and requested permission to seize all of Metter’s computers and
emails and to perform an off-site search for responsive documents. Id. at 208. The government intended to
set up a “taint team” to review the digital evidence for privilege issues. Id. at 210. In the meantime, the
government intended to produce all of the electronic evidence to all of the
defendants. Id. Metter objected to
dissemination of all of his computer data to all defendants and moved to
suppress. At the time the suppression motion was fully briefed, 15 months had
passed since the government first seized the computer data and emails. Id. at 211.
The district court applied the
“flagrant disregard” test and concluded that suppression of all of Metter’s computer data and emails
was required. As the court reasoned “the Court cannot, in the interest of
justice and fairness, permit the government to ignore its obligations.
Otherwise, the Fourth Amendment would lose all force and meaning in the digital
era and citizens will have no recourse as to the unlawful seizure of information
that falls outside the scope of a search warrant and its subsequent dissemination.
Accordingly, Metter’s motion to suppress is granted.” Id. at 216.
In Metter, the government filed an interlocutory appeal to the Second
Circuit under 18 U.S.C. § 3731, on the ground that the suppressed evidence was
substantial proof of a material fact in the proceeding. During the intervening
proceedings, a plea deal was reached and Metter received a sentence of 5 years’
probation. The government’s appeal was therefore withdrawn. See United States v. Metter, 10-CR-600 (DLI), Dkt. Entry 304.
Interestingly, there is no
indication that the district court in Metter
ever ordered the government to return or destroy Metter’s computer data. But in
5. The
Fourth Amendment’s Protection of Privacy Justifies a Strong Sanction When the
Government Unjustifiably Retains Non-Responsive Electronic Data
The compromise of permitting the
government to seize all computer data first and search it later, coupled with the
Fourth Amendment’s protection of “privacy,” as developed by the Supreme Court,
justifies a strong sanction when the government deliberately retains
non-responsive computer data. The government is only in possession of this
material as a matter of convenience and even the slightest abuse of that
position requires strong rebuke by the courts.
The primary purpose of the Fourth
Amendment is not to protect tchotchkes and knickknacks. While protecting a
person’s home and property against warrantless search and seizure by the government
is an important and practical protection provided by the Fourth Amendment, the
grander purpose is the protection and nurturing of ideas and thoughts from
government prying.
Looking
back at Olmstead, a 5-4 majority of
the Supreme Court held that the government did not violate the Fourth Amendment
“unless there has been an official search and seizure of his person, or such a
seizure of his papers or his tangible material effects, or an actual physical
invasion of his house ‘or curtilage’ for the purpose of making a seizure. We
think, therefore, that the wire tapping here disclosed did not amount to a
search or seizure within the meaning of the Fourth Amendment.” Olmstead, 277 U.S. 438 at 466. In other
words, the Court was more concerned with the protection of property, than with
the protection of privacy. But that interpretation of the Fourth Amendment has
changed over time, especially with the creation of new technologies, such as
the telephone and computers, which are based on intangible “property.”
In his
dissenting opinion, Justice Brandeis expressed a more enlightened application
of the Fourth Amendment -- one that protected thoughts and ideas, described as
“the privacies of life.” Olmstead, 277 U.S. 438 at 474 (quoting Boyd v. United States, 116 U.S. 616, 627-630 (1886)). “’Of all the rights of the citizen,
few are of greater importance or more essential to his peace and happiness than
the right of personal security, and that involves, not merely protection of his
person from assault, but exemption of his private affairs, books, and papers
from the inspection and scrutiny of others. Without the enjoyment of this
right, all other rights would lose half their value.’” Id. at 475 n.3 (quoting In rePacific R. Com., 32 F. 241, 250 (C.C.D. Cal. 1887)).
Justice Brandeis viewed wiretapping
telephone conversations as an especially intrusive investigative instrument
that ultimately led to special protections under Title III. As Justice Brandeis
observed in Olmstead:
The evil incident to invasion of the
privacy of the telephone is far greater than that involved in tampering with
the mails. Whenever a telephone line is tapped, the privacy of the persons at
both ends of the line is invaded and all conversations between them upon any
subject, and although proper, confidential and privileged, may be overheard. Moreover,
the tapping of one man’s telephone line involves the tapping of the telephone
of every other person whom he may call or who may call him. As a means of
espionage, writs of assistance and general warrants are but puny instruments of
tyranny and oppression when compared with wire-tapping.
Olmstead, 277 U.S. at 475-76. Justice Brandeis concluded that the
Fourth Amendment’s achievement in protecting privacy extended beyond merely
protecting things to protecting ideas, which was even more important:
The protection
guaranteed by the Amendments is much broader in scope. The makers of our
Constitution undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of man’s spiritual nature, of his
feelings and of his intellect. They knew that only a part of the pain, pleasure
and satisfactions of life are to be found in material things. They sought to protect Americans in their
beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government,
the right to be let alone -- the most comprehensive of rights and the right
most valued by civilized men.
Id. at 478
(emphasis supplied). And Justice Brandeis recognized that:
Experience should teach us to be most
on our guard to protect liberty when the Government’s purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by
evil-minded rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but without understanding.
In the years since Olmstead, the exclusively property-based
approach to the Fourth Amendment has been expanded, as in United States v. Jones, 132 S. Ct. 945,950, 181 L. Ed. 2d 911, 918, 2012 U.S. LEXIS 1063 *9 (2012), “later cases…have
deviated from the exclusively property-based approach [to the Fourth
Amendment].” See also Florida v. Jardines, 133 S. Ct. 1409, 185 L.Ed.2d 495, 2013 U.S. LEXIS 2542 (2013) ("By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), property rights 'are not the sole measure of Fourth Amendment violations,' Soldal v. Cook County, 506 U.S. 56, 64, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992)"). Ironically, Jones itself
(authored by Justice Scalia) applied a property-based approach in holding that
the government violated the defendant’s Fourth Amendment rights by installing a
GPS tracking device on his car without a warrant, because “[t]he Government
physically occupied private property for the purpose of obtaining information.”
Id. 132 S. Ct. at 949; see also
Id. at 958 (“Ironically, the Court
has chosen to decide this case based on 18th-century tort law.”)
(Alito, J., concurring).
In Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430, 2014 U.S.LEXIS 4497 (2014), the Court returned to a privacy-based Fourth Amendment
approach and held that the police could not search a person’s cell phone
incident to arrest without a warrant. Noting that “modern cell phones…are now
such a pervasive and insistent part of daily life that the proverbial visitor
from Mars might conclude they were an important feature of human anatomy,” Riley, 134 S. Ct. at 2484, the Court
recognized that “[c]ell phones place vast quantities of personal information
literally in the hands of individuals.” Id.at 2485. Circling back to the Fourth Amendment’s protection of private
thoughts, beliefs, emotions, and ideas, the Court recognized that “[m]odern cell
phones are not just another technological convenience. With all they contain
and all they may reveal, they hold for many Americans ‘the privacies of life,’”
Riley, 134 S. Ct. at 2494-95 (quoting
Boyd v. United States, 116 U. S. 616,630, 6 S. Ct. 524, 29 L. Ed. 746 (1886)).
In Riley, the Court recognized that those “privacies of life” included
internet search or browsing history revealing an individual’s private interests
or concerns, “apps” revealing “information about all aspects of a person’s
life,” including “apps for Democratic Party news and Republican Party news;
apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests;
apps for tracking pregnancy symptoms; apps for planning your budget; apps for every
conceivable hobby or pastime; apps for improving your romantic life. There are
popular apps for buying or selling just about anything, and the records of such
trans-actions may be accessible on the phone indefinitely.” Riley, 134 S. Ct. at 2490.
Consistent with other cases, Riley concluded that a search of a cell
phone (or computer) was more intrusive than the search of a person’s home. “Indeed,
a cell phone search would typically expose to the government far more than the
most exhaustive search of a house: A phone not only contains in digital form
many sensitive records previously found in the home; it also contains a broad
array of private information never found in a home in any form--unless the
phone is.” Id. at 2491. Although Riley applied to a cell phone search, the
Court’s privacy observations in that case are equally applicable – if not more
applicable – to computer and email searches.
6. The
Government Is Entitled To A Reasonable Search, Not A Perfect One
In Riley and Ganias, the
Supreme Court and the Second Circuit, respectively, rejected the government’s
arguments for why the government’s interest in obtaining electronic evidence
should diminish a defendant’s Fourth Amendment right to privacy. Both courts
recognized that Fourth Amendment protections will always result in the
potential loss of some evidence, but that providing the government with a means
to collect all possible evidence was outweighed by Fourth Amendment privacy
concerns.
In Riley, the government argued that the police should not be required
to obtain a search warrant for a suspect’s cell phone incident to arrest
because or whenever: (1) evidence might be destroyed via remote wiping and data
encryption (Riley, 134 S. Ct. at2486), (2) an arrestee has a reduced privacy interest upon being taken into
custody (Id. at 2488), (3) “it is
reasonable to believe that the phone contains evidence of the crime of arrest”
(Id. at 2492), (4) “an officer
reasonably believes that information relevant to the crime, the arrestee’s
identity, or officer safety will be discovered” (Id.), (5) officers should always be able to search a phone’s call
log (Id.), and (6) officers could
have obtained the same information from a pre-digital counterpart (Id. at 2493).
In Riley, the Supreme Court rejected all of these arguments, pointing
out that the government is not entitled to “a complete answer to the problem”
as long as there is “a reasonable response.” Id. at 2487. As the Court recognized “we generally determine
whether to exempt a given type of search from the warrant requirement ‘by
assessing, on the one hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed for the promotion
of legitimate governmental interests.’ Wyomingv. Houghton, 526 U. S. 295, 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).”
Riley, 134 S. Ct. at 2484. The Court concluded:
We cannot deny that our decision today
will have an impact on the ability of law enforcement to combat crime. Cell
phones have become important tools in facilitating coordination and
communication among members of criminal enterprises, and can provide valuable
incriminating information about dangerous criminals. Privacy comes at a cost.
Id. at 2493; see also
Riley, 134 S. Ct. at 2496-97 (“Many
cell phones now in use are capable of storing and accessing a quantity of information,
some highly personal, that no person would ever have had on his person in
hard-copy form. This calls for a new balancing of law enforcement and privacy
interests.”) (Alito, J. concurring).
In Ganias, the government attempted to justify retaining indefinitely
non-responsive electronic data by arguing that: (1) any “mirror images” the
government made of a suspect’s computer were created by the government and were
therefore “the government’s property” (Ganias, 2014 U.S. App. LEXIS 11222 at *31), (2) a subsequent search warrant for indefinitely
retained non-responsive computer data, cured any Fourth Amendment defect (Id. at 32), (3) the non-responsive data
might not exist if the government did not maintain a mirrored image of the
defendant’s hard drive (Id. at *34),
(4) returning or destroying non-responsive electronic data was “entirely
impractical” because doing so would compromise the remaining data in a way that
would make it impossible to preserve an evidentiary chain of custody to authenticate
the data at trial (Id. at 35), and (5)
the proper remedy for the defendant was a motion for the return of property
under Fed.R.Crim.P. 41 (g) (Id. at35). The Second Circuit rejected all of these arguments, finding that “the ends…do
not justify the means” and therefore none of these practical considerations
outweighed the defendant’s privacy interests.
Conclusion
Unless Congress
creates special protocols for electronic searches, as it did for telephone wiretaps
in Title III, litigants must rely on ex post, as opposed to ex ante, search rules
to govern the scope of electronic searches. Ganias
creates a rule that the government may not retain indefinitely non-responsive electronic
data, based on the special privacy concerns with computers and the Supreme
Court’s focus on the Fourth Amendment’s protection of “the privacies of life”
in the cases leading up to and including Riley.
Where the government violates this rule, suppression of all the electronic data,
as done in Metter, seems to be an
appropriate sanction, especially in light of the Second Circuit’s recognition
that when it comes to computers “even greater protection is warranted” than in cases
involving paper documents. Ganias. 2014U.S. App. LEXIS 11222 at *22. As one court recently reminded us, "constitutional rights, if they are to be rights at all, must have some discernible remedy." See Zherka v. Ryan, 2014 U.S. Dist. LEXIS 140564 *14 (S.D.N.Y. 2014) (Griesa, J.). Therefore, the sanction in Metter is the appropriate one, since merely authorizing suppression of non-responsive data that the government does not seek to introduce into evidence would be, in essence, no remedy at all.
