D.Kan.: Keyword search of emails seized in SW narrowed search, and it was reasonable

Defendant’s connecting to a Russian child pornography site [reported to DHS by the Russians] through his ISP at home was nexus to search his home. The search of defendant’s Yahoo! email account was reasonably conducted. 1028 emails were delivered, but a word filter search was done first to narrow the search down to 84. The lack of a search protocol did not make the search unreasonable. United States v. Deppish, 2014 U.S. Dist. LEXIS 12085 (D. Kan. January 31, 2014):

To that end, warrants for the search of email accounts are governed by the Stored Communications Act (“SCA”). The SCA merely requires a provider to disclose information rather than search for it. And, nothing in § 2703 precludes the Government from requesting the full content of a specified email account, nor has the Tenth Circuit ever required warrants to identify a particularized search strategy. In fact, the Tenth Circuit, considered this type of particularity challenge to a search of a computer for child pornography, and rejected the argument that the search warrant must be limited to computer files containing child pornography. In United States v. Brooks, the Tenth Circuit noted that it has never required a warrant to outline a particularized computer search strategy, but rather the officers must describe with particularity the objects to be seized. Here the warrant sought a broad disclosure of Defendant’s email account, but described with particularity the objects to be seized, that is instrumentalities and evidence demonstrating violations of 18 U.S.C. § 2252.

Moreover, nothing in the Fourth Amendment requires law enforcement to cede to non-law enforcement their power to search and determine which matters are subject to seizure. The alternative of having YAHOO technicians search for the information requested would have placed an unreasonable burden on YAHOO and it would be less effective than allowing government agents to determine the relevance of particular emails. Thus, this search warrant sought disclosure of the entire YAHOO email account, but limited seizure to instrumentalities and evidence tending to show and identify persons engaged in sexual exploitation of children in violation of 18 U.S.C. § 2252(a).

Defendant complains that the particular search methodology employed in this case was overbroad but Defendant offers no alternative search methods that would protect his interests while permitting a search of the YAHOO account. In this case, although the warrant did not identify the particularized search strategy, Agent Kanatzar employed such a strategy. He did not search or view the entirety of the emails in the YAHOO account. Rather he performed a keyword, filtered search, to focus on those emails that would probably contain instrumentalities and evidence of the tending to show and identify persons engaged in sexual exploitation of children in violation of 18 U.S.C. § 2252(a). Of the 1028 emails disclosed, this filtered search led to the search and seizure of only 84 emails; Agent Kanatzer did not open or view the other 944 emails.