Once again, USMJ Facciola of the D.D.C. limits a search warrant application for a cell phone because the search warrant doesn’t ensure that the search won’t be overbroad and that things not sought won’t be seen. Essentially, the court treats the cell phone like a computer search. [Thus, in a matter of weeks, one judge had created a body of work on electronic searches that SCOTUS should pay attention to when deciding its cell phone search cases this spring. Really, this judge is only saying what we’re all thinking.] In re the Search of Apple iPhone, 2014 U.S. Dist. LEXIS 39703 (D. D.C. March 26, 2014):
Although Attachment B provides a sufficiently particularized list of the data that the government will search for and seize, the Forensic Analysis section fails to provide this Court with the same level of detail as to the methodologies to be used to conduct the search. Specifically, the government fails to articulate how it will limit the possibility that data outside the scope of the warrant will be searched. For the reasons stated below, the government’s Application for a search and seizure warrant will, therefore, be denied.
. . .
1. Oversiezure Remains a Problem, Violating the Requirement of Probable Cause
In its previous two opinions, the Court was concerned about the overseizure of data for which there was no probable cause. As written, the government’s application indicated that it would take and sift through massive amounts of data for which it had no probable cause to seize in the first place. See In re Search Black iPhone, 2014 WL 1045812, at *4-5. The Court thus required an intended search protocol so that it could better understand the scope of the warrant it was asked to issue. Whether the target devices would be imaged in full, for how long those images will be kept, and what will happen to data that is seized but is ultimately determined not to be within the scope of the warrant-or, more precisely, Attachment B-can only be addressed by a search protocol; after all, the imaging actually occurs as part of the search process.
The government failed to adequately address this issue in In re Search of Odys Loox because it indicated that it would “image these devices and store them until the target/ defendant’s appeals and habeas proceedings are concluded.” 2014 WL 1063996, at *5 (internal quotation and citation omitted). The government was therefore admitting that, even though it had probable cause for only some of the data on the devices, it intended to keep all of the data for an indefinite period of time. That would constitute an unconstitutional seizure, which this Court could not permit. See United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (“However, the wholesale seizure for later detailed examination of records not described in a warrant is significantly more intrusive, and has been characterized as ‘the kind of investigatory dragnet that the fourth amendment was designed to prevent.'”) (citing United States v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980)).
The present Application has largely, but not entirely, solved this problem. The government’s position is now:
Data outside the scope of the warrant. Any information discovered on the Device to be seized which falls outside of the scope of this warrant will be returned or, if copied, destroyed within a reasonably prompt amount of time after the information is identified.
Application at 11. This answers the question of what will happen to the data that the government, having finished its search, determines is outside the scope of Attachment B and thus outside the scope of the warrant. The Court’s only remaining quibble is that, unlike in In re Search of Odys Loox, the government does not specify here that the iPhone will be imaged. This is important because, if the device will be imaged, then there will be a complete copy of all its data-including the data for which there is no probable cause to seize-that must be accounted for and which ultimately must be purged of data outside the scope of the warrant. As a practical matter, the Court cannot imagine that an image would not be created, so the government must clarify this aspect and make clear in its applications that the non-relevant data will be deleted from any system images. Including such a statement in a search protocol would address this concern. See United States v. Hill, 459 F.3d 966, 976-77 (9th Cir. 2006) (holding overbroad a warrant authorizing the “blanket seizure” of computer storage media without sufficiently explaining the process-in that case removing all storage media offsite-to the issuing magistrate).
2. A Search Protocol Is Needed to Address the Particularity of the Place to Be Searched
The Court also requires a search protocol for a separate Fourth Amendment reason-to particularly describe the place to be searched. In a broad manner, describing the iPhone and its specific IMEI number certainly describes the “place to be searched” in a particular manner. But an electronic search is not that simple. An iPhone 4 has either 16 GB or 32 GB of flash memory, which could allow storage of up to around two million text documents.11 Obviously no one-especially not a college student-would fill an iPhone with text documents, but it is inconceivable that the government would go file by file to determine whether each one is within the scope of the warrant. Instead, as the government has explained in extremely general terms, it will use some sort of “computer-assisted scans” to determine where to look because those scans will determine which parts will be exposed “to human inspection in order to determine whether it is evidence described by the warrant.” Affidavit at 11. Thus, a sufficient search protocol, i.e. an explanation of the scientific methodology the government will use to separate what is permitted to be seized from what is not, will explain to the Court how the government will decide where it is going to search-and it is thus squarely aimed at satisfying the particularity requirement of the Fourth Amendment.
In drawing this conclusion, the Court finds persuasive the 2012 opinion from the Supreme Court of Vermont, which authorized ex ante restrictions on search warrants because “the only feasible [*17] way to specify a particular ‘region’ of the computer will be by specifying how to search.” In re Search Warrant, 71 A.3d 1158, 1171 (Vt. 2012). This also distinguishes the Court’s requirement for a search protocol from cases like Dalia v. United States, 441 U.S. 238, 257-58 (1979). In that case, the government obtained a warrant to bug the petitioner’s office, but it did not specify in the warrant application that the bug would be planted surreptitiously. Id. at 242, 245. Although petitioner argued that the warrant failed “to specify that it would be executed by means of a covert entry of his office,” the Supreme Court was unpersuaded that the Fourth Amendment requires an issuing court to “set forth precisely the procedures to be followed by the executing officers” because “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 257-58.
Unlike in Dalia, however, this Court is not requiring a search protocol so that it may specify how the warrant is to be executed. Instead, the protocol will explain to the Court how the government intends to determine where it will search (which “parts”-or blocks-of the iPhone’s NAND flash drive) and how those decisions with respect to how the search will be conducted will help limit the possibility that locations containing data outside the scope of the warrant will be searched (which is the intermingled documents problem, see In re Search Black iPhone, 2014 WL 1045812, at *4). Instead of identifying specific blocks of the iPhone’s flash drive will be searched ahead of time-which would be impossible-the Court is instead asking the government to explain its methodology for determining, once it is engaged in the search, how it will determine which blocks should be searched for data within the scope of the warrant. See In re Search Warrant, 71 A.3d at 1171. This is a subtle but, depending on one’s interpretation of the breadth of Dalia, constitutionally significant distinction.
