Southern District Opinion Allows Seizure of Emails From Host Provider With Minimal Showing of Probable Cause

by Manatt, Phelps & Phillips, LLP

A Southern District of New York Magistrate Judge last week approved the government’s ability to conduct searches and seizures of entire email accounts stored by third-party providers like Google, Microsoft, Yahoo! and Apple without having to establish probable cause that all the emails seized are evidence of a crime.1 The decision is significant not only because it is inapposite to decisions by other courts that have frowned on such wholesale incursions as violations of the Fourth Amendment, but also because it opens the door to allowing the government to seize a virtually unlimited number of emails from email hosting companies in every investigation where it only has cause to believe that a small group of emails contain evidence of criminal activity (in other words, most white collar cases).

In a memorandum opinion, Magistrate Judge Gabriel Gorenstein granted a warrant directing Google to turn over the entire contents of a Gmail user’s email account in conjunction with a money laundering investigation. The government’s search warrant application in the case directed Google to turn over “all content and other information . . . associated with” the target’s email account, including all emails sent, received or stored as drafts, all address book information and other account information. The warrant application did not contain any search protocol or other limitations and provided that law enforcement personnel would review the records produced in order to locate certain specific categories of evidence of possible violations of various money laundering statutes.

The primary issue addressed by the court was whether a search warrant seeking all emails in an account from an electronic communications service provider is appropriate where there is no probable cause to believe that the email account consists exclusively of emails within the categories of items to be seized under the warrant. The court specifically noted two recent decisions – one in the District of Columbia2 and one in the District of Kansas3 – in which courts have held that such warrant applications are overbroad and fail to establish probable cause over all of the emails sought. Those courts held that such a broad warrant application was akin to a “general warrant” that would permit the government to undertake a “general, exploratory rummaging in a person’s belongings . . . .” Both courts compared the governments’ requests to obtain all emails to a warrant asking the post office to provide copies of every letter sent from or delivered to a particular address so that law enforcement could open and read the mail to find whether it constitutes evidence of a crime. Such general warrants, both courts concluded, are clearly prohibited under the Fourth Amendment.

But the S.D.N.Y. held that these courts had too narrowly construed the Fourth Amendment’s particularity requirement, citing cases in which courts have upheld the practice of a brief perusal of innocuous documents seized during an otherwise valid search to determine their possible relevance to a crime. Specifically, the court compared the search warrant at issue to law enforcement searches of computer hard drives, noting that courts routinely permit the seizure of an entire hard drive in order to effectuate a proper search for the categories of documents included in a warrant. The court concluded that the broad latitude granted to law enforcement to access and examine electronic information stored on a hard drive, “even where the probable cause showing does not apply to the entirety of the electronic information that is disclosed to the Government,” applied equally to a user’s email account. The court also noted a number of cases, including two others in the S.D.N.Y., in which courts have permitted such broad email account searches.

M.J. Gorenstein next turned to an alternative for narrowing the government’s warrant application suggested by the D.C. District Court that would involve requiring the entity hosting the emails to undertake the email searches called for by the warrant. In the D.C. District case, Magistrate Judge John Facciola rejected the argument that a warrant seeking all of a customer’s emails from Apple, Inc. fell under a narrow exception authorizing an otherwise unconstitutionally broad search where it is the only practical way to perform the search. The court noted the existence of an alternative that would prevent the government from seizing large quantities of data for which no probable cause existed – namely, the electronic communication service provider could perform the search at the government’s request and simply turn over any relevant data that it discovered. While the S.D.N.Y. acknowledged that such a requirement may be appropriate where the searches do not require the exercise of skill or discretion on the part of the email host – for instance, limiting disclosure by time period – M.J. Gorenstein identified issues presented by such an approach where some discretion does come into play. In particular, the court noted that it is unrealistic to ask Google employees to review every email in a user’s account and attempt to interpret the significance of particular emails to a criminal investigation without the necessary training and supervision by law enforcement. Such an approach, the court observed, would essentially require the email host’s employees to act as agents of the federal government and would allow private employees to access and obtain personal information about the targets of investigations that they otherwise would have no reason to see.

On the related issue of whether the government should have to impose certain minimization protocols concerning the government’s handling and retention of the material disclosed by third-party custodians of electronic information, the S.D.N.Y. again sided with the government. The D.C. District had found the government’s proposal to seal and keep indefinitely, rather than destroy, emails determined to be irrelevant and outside the scope of the warrant to be unacceptable. But the S.D.N.Y. held that, while the government has the power to impose limitations at the time a warrant application is approved, such limitations are not required ex ante. The court noted the possibility that materials initially determined to be irrelevant may, as the investigation unfolds, be re-reviewed and marked as relevant as new information comes to light. The court also noted that seizure of email data did not create practical impediments for the individual’s use of the data such that it needed to be returned promptly.

In concluding that it was not required to impose minimization procedures in approving the warrant, the S.D.N.Y. dismissed the applicability of a recent decision by the Second Circuit Court of Appeals holding that the Fourth Amendment does not permit officials executing a warrant for particular data on a computer to seize and indefinitely retain every file on the computer for use in future criminal investigations.4 In that case, the government had seized an accountant’s electronic files pursuant to an investigation of certain of his clients and assured him that any files unrelated to the investigation would be purged. But the irrelevant files were not purged, and, when the government subsequently came to suspect that the accountant was involved in criminal activity, it obtained a second warrant for the material that had been in its possession for over two and a half years. The government relied on these retained files, which otherwise no longer existed, to convict the accountant for tax evasion.

Notwithstanding the Second Circuit’s post-conviction holding that the government’s retention was unreasonable under the Fourth Amendment, M.J. Gorenstein held that nothing in the Ganias opinion “suggests that a magistrate judge approving a warrant application must or should impose ex ante restrictions pertaining to the later execution of that warrant.” Instead, the court focused on other “appropriate and adequate” mechanisms available after the execution of a warrant designed to ensure that material obtained pursuant to a search warrant is properly handled and retained, including suppression motions, motions under Fed. R. Crim. Proc. 41(g), and civil damages actions. In other words, the defendant’s recourse comes into play only after being charged, a dangerous precedent indeed.

1. The decision is In the Matter of A Warrant For All Content and Other Information Associated With The Email Account Maintained At Premises Controlled by Google, Inc., Case 1:14-mj-00309-UA (S.D.N.Y. Jul. 18, 2014).

2. In the Matter of the Search of Information Associated with [redacted] that is Stored at Premises Controlled by Apple, Inc., 2014 WL 1377793 (D.D.C. Apr. 7, 2014).

3. In the Matter of Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, 2013 WL 4647554 (D. Kan. Aug. 27, 2013).

4. United States v. Ganias, 2014 WL 2722618 (2d Cir. June 17, 2014).



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