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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filed Under: 4th amendment, search, warrants