Electronic Searches : United States v. Ganias

“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.”

Weems v. United States, 217 U.S. 349,373 (1910)

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.

CDT III, 621 F.3d at 1175-77.

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).

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.”

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).

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.

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 In re: [REDACTED]@gmail.com, No. 5:14-mj-70655 (PSG) (N.D.Cal. 2014), the court denied the government's application to seize and search a gmail account because the warrant (1) failed to include date restriction and (2) the government did not commit to return or destroy evidence not relevant to its investigation.

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.

Id. at 572-73.

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 18^th-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.