The government brings a second search warrant application for an email account, and it is rejected again as overbroad. The concerns of the prior opinion are not addressed. Also, the government’s contention that copying emails is not a “seizure” is rejected out of hand. Follow Tamura: it’s now in Rule 41. In re Search of Information Associated with [Redacted]@mac.com, 2014 U.S. Dist. LEXIS 52053 (D.D.C. April 7, 2014):
Pending before the Court is a Renewed 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 email address.1 See Affidavit in Support of an Application for a Search Warrant [#5-1] (sealed) at 1 (hereinafter Affidavit). In a previous Memorandum Opinion and Order, this Court denied the government’s original application for a search and seizure warrant for the same e-mail address without prejudice both because it failed to clearly specify which e-mails it sought to seize and because it sought authorization to seize e-mails for which it had not established probable cause to seize. In re Search of Apple E-mail, 2014 U.S. Dist. LEXIS 35323, 2014 WL 945563, at *3, *5. The government’s Renewed Application does not address these concerns and ignores the substance of this Court’s previous rulings. The government persists in its attempt to seize an entire e-mail account and search through all of it. For the reasons stated below, the government’s Renewed Application for a search and seizure warrant will, therefore, be denied.
. . .
A. The Government Still Seeks an Unconstitutional General Warrant
1. The Fourth Amendment Prohibits the Type of Warrant the Government Seeks
The Supreme Court has recognized two constitutional protections served by the warrant requirement of the Fourth Amendment. “First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.” Coolidge, 403 U.S. at 467. Thus, it is this Court’s duty to reject any applications for search warrants where the standard of probable cause has not been met. Second, “those searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Id. To follow the dictates of the Fourth Amendment and to avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant application.
As this Court has previously noted, any e-mails that are turned over to the government are unquestionably “seized” within the meaning of the Fourth Amendment. See In re Search of Apple E-mail, 2014 U.S. Dist. LEXIS 35323, 2014 WL 945563, at *5 (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 596, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989) (noting that a “seizure” occurs when there is “an intentional acquisition of physical control”). Although the Supreme Court has never specifically defined what constitutes a seizure in the electronic world, it has stated that, with regard to physical items, a “‘seizure’ of property only occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). In this Court’s view, a seizure of property occurs when e-mails are copied and taken by the government without the owner’s consent because an individual’s “possessory interest [in the e-mails] extends to both the original and any copies made from it.” Orin Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700, 703 (2010). After all, when a copy is made, “the person loses exclusive rights to the data,” id., and it is at that time that the owner’s property interest in the e-mail is affected. This reality has been assumed, if not stated outright, in the numerous cases that acknowledge that e-mails turned over to the government by an electronic communications service provider are “seized.” See, e.g., In re Search of Target Email Address, 2012 U.S. Dist. LEXIS 138465, 2012 WL 4383917, at *9; United States v. Taylor, 764 F. Supp. 2d 230, 237 (D.Me. 2011); United States v. Bickle, No. 10-CR-00565, 2011 U.S. Dist. LEXIS 94921, 2011 WL 3798225, at *22 (D.Nev. July 21, 2011); United States v. Bowen, 689 F. Supp. 2d 675, 684 (S.D.N.Y. 2010).
To conclude otherwise would yield unsatisfactory results.8 First, if copying were not considered “seizing,” that would suggest the irrelevance of the Fourth Amendment to that act:
If copying data is not a seizure, then copying cannot logically be regarded as a search and it does not violate an expectation of privacy. It is possible to copy files without examining the files. Therefore, if copying is not a seizure, it is outside the scope of the Fourth Amendment’s reasonableness requirements and is an activity which can be conducted at will, requiring neither the justification of a warrant nor an exception to the warrant requirement. This is not a satisfactory result. Copying has an effect upon the “ownership” rights of the party whose information is copied.
Susan Brenner and Barbara Frederiksen, Computer Searches and Seizures: Some Unresolved Issues, 8 Mich. Telecomm. & Tech. L. Rev. 39, 113 (2002). Thus, this Court would have to believe that, if the act of copying e-mail is not a seizure, then the Fourth Amendment is powerless to prevent the wholesale copying of every single e-mail ever sent, a result that no court could ever reasonably embrace. It would also render hollow the Sixth Circuit’s holding in United States v. Warshak, 631 F.3d 266, 285-88 (2010), that there is a reasonable expectation of privacy with respect to one’s e-mails—even though those e-mails were copied by an electronic communications service provider and given to the government. Id. at 283.
Second, that approach suggests that a seizure could only occur if the actual hard drive that contains the target e-mail account, which is presumably in a server farm operated by Apple, is physically taken by the government. This ignores the reality that “[h]ardware is increasingly fungible” and that what really matters—and what the owner of the e-mails actually has a possessory interest in—”is the data.” Fourth Amendment Seizures of Computer Data, 119 Yale L.J. at 712. A focus on hardware instead of data, in determining when a seizure occurs, would therefore miss the mark and ignore fundamental realities about how computers are actually used. See In re Southeastern Equipment Co. Search Warrant, 746 F. Supp. 1563, 1576 (S.D.Ga. 1990) (“As the LeClair Court pointed out, it is the information itself, not the paper and ink or tape recorder or other copying utensil, that is actually seized.”) (citing Le Clair v. Hart, 800 F.2d 692, 696 n.5 (7th Cir. 1986)).
Furthermore, the government itself characterizes the act of copying e-mails as a seizure by noting that it will “seize” some of the copied e-mails after the search is complete. See Affidavit at 13-15. It is, after all, seeking a “search and seizure warrant.” See Fed. R. Crim. P. 41. Thus, even though the e-mails are only being copied by Apple (with other copies remaining on Apple’s servers), a seizure is occurring. Because there is no principled distinction that suggests that copying data once is not a seizure but copying data twice is a seizure, it follows that the e-mails are seized the first time they are copied by Apple and given to the government. Any other position is unsatisfactory because the property interest in e-mails certainly suffers “meaningful interference” when a third party has unauthorized access to those e-mails. Thus, emails are seized when Apple gives them to the government just as surely as a physical letter is if it is taken by the postal service and given to the government. See Fourth Amendment Seizures of Computer Data, 119 Yale L.J. at 722-23.
. . .
2. The Two-Step Procedure Is a Narrow Exception Due to Practical Considerations That Is Inapplicable Here
Nevertheless, there is a narrow exception that authorizes an otherwise unconstitutionally broad seizure if the only practical way to perform a search is to seize an entire repository, such as a file cabinet or computer, and take it offsite for a later search. This is, in essence, the procedure outlined in United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982), where the Ninth Circuit deemed it acceptable to take a large quantity of documents offsite if the government explained that need to the magistrate. This two-step procedure—seize a large quantity of data and perform the specific search later at an offsite location—was later codified in Rule 41. See Fed. R. Crim. P. 41(e)(2)(B).
There is no question that the two-step procedure is constitutional under certain circumstances. See Facebook Opinion, 2013 U.S. Dist. LEXIS 185850, 2013 WL 7856600, at *6 (citing cases holding that the two-step process under Rule 41 does not violate the Fourth Amendment). In fact, this Court has recently approved use of the two-step procedure in a series of opinions addressing the search of cell phones and hard drives—but only if the government provides an adequate search protocol explaining how it will perform the search and ensure that it is only searching sectors or blocks of the drives that are most likely to contain the data for which there is probable cause.11 In those instances, the search protocol must “explain how [the government] is going to conduct this search to minimize the risk that files outside the scope of the warrant will be discovered.” See In re Apple iPhone, 2014 U.S. Dist. LEXIS 39703, 2014 WL 1239702, at *7.
