Email search warrant following government’s standard format is a general search. It has to be narrowed, and the email provider should perform the screening function before the government gets it. In re Search of Information Associated with [Redacted]@mac.com, 2014 U.S. Dist. LEXIS 35323 (D. D.C. March 7, 2014) (relying heavily on the court’s own “Facebook Opinion”):
Pending before the Court is an Application for a search and seizure warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(a), (b) and (c) to disclose certain records and contents of electronic communications relating to an Apple e-mail address. Despite this Court’s repeated prior warnings about the use of formulaic language and overbroad requests that—if granted—would violate the Fourth Amendment, this Court is once again asked by the government to issue a facially overbroad search and seizure warrant. For the reasons explained below, the government’s application for a search and seizure warrant will be denied.
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Following a standard format used by the Department of Justice,4 the Application is divided into three main parts. The first part provides background and explains the basis for probable cause. The second part—labeled Attachment A—is titled “Place to Be Searched” and specifies the location of Apple, Inc.; it also explains that the “warrant applies to information associated with the e-mail account [redacted]@mac.com which date from [December], 2013, until the present.” Application at 14. Finally, the third part—labeled Attachment B—operates in a bifurcated manner: under the heading “Particular Things to be Seized,” the Application distinguishes between “Information to be Disclosed by Apple” and “Information to be seized by the government.” Application at
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III. Analysis
A. The Court’s Previous Actions Regarding Overly Broad Search Warrant Applications
This Court is increasingly concerned about the government’s applications for search warrants for electronic data. In essence, its applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information. To ameliorate this problem and bring the warrants in line with the Fourth Amendment, this Court has issued “Secondary Orders” to accompany search and seizure warrants for electronic records. These “Secondary Orders” explicitly require that contents and records of electronic communications that are not relevant to an investigation must be returned or destroyed and cannot be kept by the government. See, e.g., In the Matter of the Search of Information Associated with [Redacted] That is Stored at Premises Controlled by Yahoo! Inc., 13-MJ-728, [#4] (D.D.C. Sept. 25, 2013) (sealed) (Facciola, M.J.) (“All contents and records that the United States government determines are not within the scope of Attachment B (II)(A), (B), and (C) shall be either returned to Yahoo!, Inc., or, if copies, destroyed.”). Without such an order, this Court is concerned that the government will see no obstacle to simply keeping all of the data that it collects, regardless of its relevance to the specific investigation for which it is sought. See 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., 13-MJ-742, 2013 U.S. Dist. LEXIS 185850, 2013 WL 7856600, at *7 (D.D.C. Nov. 26, 2013) (Facciola, M.J.) (hereinafter “Facebook Opinion”).
That, however, has not been the extent of the Court’s concerns. In the Court’s November 2013 Facebook Opinion involving the search of the Facebook account of Navy Yard shooter Aaron Alexis, the Court raised serious concerns about the government’s use of the two-step procedure under Rule 41 of the Federal Rules of Criminal Procedure. See Facebook Opinion, 2013 U.S. Dist. LEXIS 185850, 2013 WL 7856600, at *6. (“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.'”) (citing Fed. R. Crim. P. 41(e)(2)(B)). Under this approach, “the initial section of the warrants authorizing the electronic communications service provider to disclose all email communications (including all content of the communications), and all records and other information regarding the account is too broad and too general.” 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 U.S. Dist. LEXIS 123129, 2013 WL 4647554, at *1 (D.Kan. Aug. 27, 2013) (“In re App.”). Despite the Court raising its concerns and urging the government to adopt a different approach, the government continues to ask for all electronically stored information in e-mail accounts, irrespective of the relevance to the investigation.
To ameliorate these problems with respect to Alexis’s Facebook account, the Court modified the search warrant to ensure that no third-party communications were turned over to the government, see Facebook Opinion, 2013 U.S. Dist. LEXIS 185850, 2013 WL 7856600, at *3, and to require that the government destroy “[a]ll records and content that the government determines are NOT within the scope of the investigation.” 2013 U.S. Dist. LEXIS 185850, [WL] at *7.
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B. The Government Seeks an Unconstitutional General Warrant
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Here, the government has adequately described the “items to be seized”—but it has done so in the wrong part of the warrant and in a manner that will cause an unconstitutional seizure. By abusing the two-step procedure under Rule 41, the government is asking Apple to disclose the entirety of three months’ worth of e-mails and other e-mail account information. See Application at 14-15. Yet, on the very next page, it explains that it will only “seize” specific items related to its criminal investigation; it goes so far as to name specific individuals and companies that, if mentioned in an e-mail, would make that e-mail eligible to be seized. Id. at 15. Thus, the government has shown that it can “describe the items to be seized with [] much specificity”; it has simply chosen not to by pretending that it is not actually “seizing” the information when Apple discloses it. See Facebook Opinion [#5] at 9-10 (“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.”).
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This Court is aware that other district courts have held that the “Fourth Amendment does not require the government to delegate a prescreening 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.” United States v. Taylor, 764 F. Supp. 2d 230, 237 (D.Me. 2011); accord United States v. Bickle, 10-CR-00565, 2011 U.S. Dist. LEXIS 94921, 2011 WL 3798225, at *20 (D.Nev. July 21, 2011); United States v. Bowen, 689 F.Supp.2d 675, 682 (S.D.N.Y. 2010). But, in light of the government’s repeated submission of overly broad warrants that violate the Fourth Amendment, this Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government’s demand that it be given everything, the government leaves the Court with only two options: deny the warrants—thus depriving the government of needed information—or issue warrants that are repugnant to the Fourth Amendment. Neither is viable.
Thus, having an electronic communication service provider perform a search, using a methodology based on search terms such as date stamps, specific words, names of recipients, or other methodology suggested by the government and approved by the Court seems to be the only way to enforce the particularity requirement commanded by the Fourth Amendment.
