In the Washington Navy Yard shooting case, the government sought a search warrant for the dead shooter’s Facebook account, and the USMJ narrowed the request because it didn’t adequately protect third parties. [No free link on court’s website, and this court has an opinions link, and this was just posted to Lexis.] In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron.Alexis That Is Stored at Premises Controlled by Facebook, Inc., 2013 U.S. Dist. LEXIS 185850 (D. D.C. November 26, 2013):
On September 27, 2013, this Court was presented with an application for a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(a), (b) and (c), to compel Facebook, Inc. to disclose certain records and contents of electronic communications relating to the Facebook account identified by the user name “Aaron.Alexis.” See generally Affidavit in Support of an Application for a Search Warrant [#1-1]. This Court did issue a Search and Seizure Warrant Order [#2], but in light of the Court’s determination that the government’s request was “overbroad under the Fourth Amendment because of the unwarranted invasion into the privacy of third parties,” the Court’s Order significantly narrowed the scope of what information Facebook could give the government. Id. at 1. That Order also promised that a memorandum opinion would explain the Court’s reasons for issuing the modified search and seizure warrant.
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Here, there was certainly probable cause to search and seize items in Alexis’s Facebook account because there was probable cause to believe that it contained evidence indicating his motive in perpetrating the shooting and whether he conspired with anyone.
The government’s application, however, wholly failed to provide any explanation whatsoever for why there was probable cause to search and seize information about third parties. Instead, there were only bare requests, such as for “[r]ecords relating to who created, used, or communicated with the user ID, including records about their identities and whereabouts.” [#1-1] Attachment B at 4 (emphasis added). Without probable cause to seize this material, this Court cannot issue a warrant authorizing its seizure.
In addition to the lack of probable cause, a separate constitutional concern arises from the government’s apparent attempt to obtain information about any Facebook groups that Alexis may have joined. The application requests “[a]ll information about the Facebook pages that the account is or was a ‘fan’ of,” as well as “[r]ecords, information, and items related to any organization, entity, or individual in any way affiliated with Alexis.” Id. at 2-3. The plain language of this request would require Facebook to turn over membership lists, which implicates the right to free association found in the First Amendment. See NAACP v. Alabama, 357 U.S. 449, 462 (1958) (“This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.”). Whether these groups were potentially political advocacy groups is immaterial, as this constitutional protection “pertain[s] to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” Id. at 460-61.
Depending on what the government found after a search of Alexis’s account, probable cause could exist to learn more information about another individual or a group. But no such probable cause existed for the initial foray into Alexis’s Facebook profile, and it was therefore premature for the government to seek so much information about third parties.
The Court is particularly concerned because this is the second time this year that it has rejected an overly broad search and seizure warrant application directed to Facebook, at least in part because it unduly invaded the privacy of third parties. In a previous opinion, which remains sealed, the Court noted that the government’s application “casts a remarkable dragnet over communications that surely have nothing to do with this case, including those to and from third parties, who will never know of the government’s seeing their communications with John Doe about unrelated matters.” In the Matter of the Search of Information associated with Facebook Account: http://facebook.com/[John.Doe] that is stored at premises controlled by Facebook, Inc., 13-MJ-485, slip op. at 2 (D.D.C. June 14, 2013) (Facciola, M.J.) (sealed). The government should exercise caution and more narrowly tailor future warrant applications directed at Facebook; individuals may voluntarily share their information with Facebook, but the government, by seeking a search warrant, justly reasons that probable cause for searching within a Facebook account is still a constitutional necessity, particularly when it will have to see third party communications that are innocuous and irrelevant and sent by persons who could not possibly have anticipated that the government would see what they have posted.
B. The Government Failed to Explain What It Would Do with Material Produced by Facebook That Is Irrelevant to Its Investigation and Thus Outside the Scope of the Search and Seizure Warrant
1. The Two-Step Process of Rule 41 Necessarily Results in the Government Seizing Information Outside the Scope of the Search Warrant
As an initial matter, it may be strange that a court would even need to raise concerns about what the government might do with information that it collects that falls outside the scope of a search and seizure warrant. After all, such collection would appear to be a per se violation of the Fourth Amendment. But due to the current “reality that over-seizing is an inherent part of the electronic search process” that gives the government “access to a larger pool of data that it has no probable cause to collect,” this Court is obliged to create minimization procedures to limit the possibility of abuse by the government. United States v. Schesso, 730 F.3d 1040, 1042 (9th Cir. 2013) (citing United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1177 (9th Cir. 2010) (en banc) (per curiam)). See also Comprehensive Drug Testing, 621 F.3d at 1178 (Kozinksi, J. concurring) (suggesting procedures magistrate judges should follow to prevent “turning all warrants for digital data into general warrants”).
Part of the problem comes from Rule 41, which creates a two-step procedure for the search and seizure of electronic information that necessarily allows seizing far more information than a warrant specifies. See Fed. R. Crim. P. 41(e)(2)(B). Under that Rule, a warrant “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 other information consistent with the warrant.” Id. According to the 2009 notes from the Advisory Committee, this procedure was codified because “it is often impractical for law enforcement to review all of the [electronic] information during execution of the warrant at the search location. . . . officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.” Fed. R. Crim. P. 41 advisory committee’s notes.
It is with the two-step procedure in Rule 41 in mind that the government has created the fiction that, although a great deal of information will be disclosed to it by Facebook, it will only “seize” that which is specified in the warrant. Compare [#1-1] Attachment B at 1 with [#1-1] Attachment B at 3; See generally In re Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, Nos. 13-MJ-8163, 13-MJ-8164, 13-MJ-8165, 13-MJ-8166, 13-MJ-8167, 2013 WL 4647554, at *1 (D.Kan. Aug. 27, 2013) (“In re App.”) (the government’s search warrant applications used the same bifurcated distinction between information disclosed and information “seized”). By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to “seize” everything that is given to it. Yet despite this attempted distinction—which has no apparent basis in the Fourth Amendment—even the material that is not within this second “seizure” category will still be turned over to the government, and it will quite clearly be “seized” within the meaning of that term under the Fourth Amendment. See Brower v. County of Inyo, 489 U.S. 593, 596 (1989) (noting that a “seizure” occurs when an object is detained or taken).
However, other courts to consider this issue have determined that copying electronic data or taking the original hard drives offsite—even if the government knows that the information contained within is beyond the scope of the warrant—does not violate the Fourth Amendment. …
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III. Conclusion
The government has once again relied on boilerplate language that is inapposite to the relevant facts. See In the Matter of the Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Site Information for Telephone Number [Redacted], 1:13-MC-199, 1:13-MC-1005, 1:13-MC-1006, slip op. at 7 (D.D.C. Oct. 31, 2013) (Facciola, M.J.) (“Generic and inaccurate boilerplate language will only cause this Court to reject future § 2703(d) applications.”). Counsel for the government represented to the Court that the list of requested items in the application was the standard list used by the Department of Justice for search warrants involving Facebook accounts, although the Court notes that this application requested the production of more information than the request that was previously denied in 13-MJ-485. The facts in this case clearly do not warrant such disclosure.
This Court is also troubled that its minimization procedure approach—while acceptable in this case—may not be appropriate to curb excessive searches and seizures in the future. Other courts have suggested alternatives, including:
1. Asking the electronic communications service provider to provide specific limited information such as emails or faxes containing certain key words or emails sent to/from certain recipients;
2. Appointing a special master with authority to hire an independent vendor to use computerized search techniques to review the information for relevance and privilege;
3. If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant;
4. Magistrate judges should insist that the government waive reliance upon the plain view doctrine in digital evidence cases; and
5. 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 agentsSee In the Matter of Applications for Search Warrants for Case Nos. 12-MJ-8119-DJW and Information Associated with 12-MJ-9191-DJW Target Email Address, Nos. 12-MJ-8119, 12-MJ-8191, 2012 WL 4383917, at *10 (items 1-2); Comprehensive Drug Testing, 521 F.3d at 1180 (Kozinski, J. concurring) (items 3-5); see also In re Search Warrant, 71 A.3d 1158, 1186 (Vt. 2012) (upholding nine ex ante restrictions on a search warrant for electronic data but holding that the issuing officer could not prevent the government from relying on the plain view doctrine). This list is non-exhaustive, and the government should take time to seriously consider how to minimize the amount of information that its search warrant applications seek to be disclosed. There is no doubt that the current state of affairs, as evidenced by the government’s original application for Alexis’s Facebook account, is untenable. If the government cannot adopt stricter search parameters in future applications, it may find this Court unwilling to issue any search and seizure warrants for electronic data that ignore the constitutional obligations to avoid “general” electronic warrants that are as offensive to the Fourth Amendment as the searches that led to its enactment.
