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U.S. Judge Approves Search Warrant for Entire Gmail Account

U.S. Magistrate Court Judge Gabriel Gorenstein in the Southern District of New York has approved a search warrant request for the entire contents of an unnamed person's Gmail account, with no restrictions. Federal prosecutors requested the warrant in a money laundering investigation.

The decision is contrary to earlier rulings by Magistrate Judges in Kansas and Washington, DC. I have uploaded the opinion here. [More...]

In the D.C. case, the court refused to issue a warrant requiring disclosure of the entire contents of an email account on the ground that the Government will "actually seize large quantities of e-mails for which it has not established probable cause." As such, it amounted to a general warrant that would allow a general, exploratory rummaging in a person's belongings.

In the Kansas case, the court rejected the warrant because it required an email host to disclose "all email communications in their entirety" and "fail[ed] to limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated."

Judge Gorenstein explains his reasoning in this 29 page opinion. As to what could be seized:

The search warrant directs Google to provide to the Government "all content and other information within the Provider's possession, custody, or control associated with" the email account, including all emails sent, received, or stored in draft form, all address book information, and a variety of other information associated with the account. The search warrant provides that law enforcement personnel "are authorized to review the records produced by the Provider in order to locate" certain specific categories of evidence described in the warrant.

As to procedures:

The warrant does not contain any search protocol and does not limit the amount of time the Government may take to review the account material disclosed by Google. The warrant also does not provide for any destruction of the material disclosed once the emails within the categories listed in the warrant are identified.

Judge Gorenstein rejects the suggestion that the email provider should search the emails and provide those relevant to the government's investigation:

("[T]he Fourth Amendment [does not] require the executing authorities to delegate a pre-screening function to the internet service provider or to ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching.")

While the order is called a search warrant because it is backed by an affidavit with probable cause, it's really a hybrid order under the Stored Communications Act (18 USC 2703):

Although [the Stored Communications Act] uses the term "warrant" and refers to the use of warrant procedures, the resulting order is not a conventional warrant; rather, the order is a hybrid: part search warrant and part subpoena. It is obtained like a search warrant when an application is made to a neutral magistrate who issues the order only upon a showing of probable cause. On the other hand, it is executed like a subpoena in that it is served on the [Internet Service Provider] in possession of the information and does not involve government agents entering the premises of the [Internet Service Provider] to search its servers and seize the e-mail account in question.

The issues addressed by Gorenstein's order:

First, is it appropriate to issue a search warrant that allows the Government to obtain all emails in an account even though there is no probable cause to believe that the email account consists exclusively of emails that are within the categories of items to be seized under the search warrant? As a subsidiary issue, we will also consider whether we may in the alternative require the email host - in this case, Google - to conduct a review of the emails and provide to the Government only those emails responsive to categories listed in the warrant.

Second, assuming we permit delivery of the entire email account to the Government, should the Court require that the Government follow certain protocols - whether as to length of search, manner of search, or length of retention of the emails- as a condition of obtaining the search warrant?

He also rejects any requirement for minimization:

Some courts issuing warrants for electronic information have included "secondary orders" imposing "minimization procedures" concerning the Government's handling and retention of material disclosed by third-party custodians of electronic information. These orders have required that records not within the scope of the search warrant either be "returned" to the custodian or, in the case of copies, "destroyed."

Judge Gorenstein writes:

We will assume, without deciding, that this Court has the power to impose limitations on retention at the time an email warrant application is approved. But we did not impose them here because we recognize that the Government has a need to retain materials as an investigation unfolds for the purpose of retrieving material that is authorized by the warrant. For example, in a drug investigation, it might be obvious based on information from an informant or other source that emails referring to the purchase or importation of "dolls" refers to cocaine, but investigators might only learn as the investigation unfolds that a seemingly innocuous email referring to purchase of"potatoes" also refers to a cocaine shipment.

...Additionally, it may be necessary for the Government to maintain a complete copy of the electronic information to authenticate evidence responsive to the warrant for purposes of trial. For these reasons, we declined to impose a deadline on the Government's retention of the materials, believing that the remedies available to curb any improper retention - including suppression, a civil damages action, and a motion under Rule 41(g) as described above- are appropriate and adequate.

Judge Gorenstein also refuses to place any limits on how the Government conducts the search.

As for whether the Court should give direction as to the manner in which the Government conducts the search of the emails, we will again assume without deciding that a court has the power to include protocols in a warrant as to the type of search to be conducted.

..."[n]othing in the language of the Constitution or in th[e] [Supreme] Court's decisions interpreting that language suggests that, in addition to the requirements set forth in the text [of the Fourth Amendment], search warrants also must include a specification of the precise manner in which they are to be executed."

...Our inability to predict the best mechanism for conducting a search strongly counsels against including any search protocol in a warrant.

He concludes by agreeing with another court which said:

We believe that court processes available following the execution of a warrant, such as a suppression motion, a motion under Rule 41 (g), and the availability of civil actions for damages, provide the appropriate mechanisms for an individual to challenge the Government's execution of a warrant. They also provide strong incentives for the Government to treat the electronic information in a manner that complies with the Fourth Amendment.

As to the deterrent effect of a civil suit for damages, I think that's highly unlikely. Many federal defendants are indigent and cannot afford lawyers. The court appoints counsel in criminal cases, but not civil actions for damages. So many of those affected by these searches would be unable to sue.

This is really an unfortunate decision. On the other hand, it's a handy reference for criminal defense lawyers because it provides so many cites to other cases on the issue of e-mail warrants.

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