Disagreeing with a USMJ for the District Court for District of Columbia, a USMJ in the Southern District of New York held that an entire email account can be the subject of a search warrant, not just itemized files. The court finds it analogous to the seizure of an entire hard drive for later search, which Rule 41 specifically permits. In re A Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@gmail Maintained at Premises Controlled by Google, Inc., 2014 U.S. Dist. LEXIS 98008 (S.D. N.Y. July 18, 2014):
In the D.C. Opinion’s view, “any e-mails that are turned over to the government are unquestionably ‘seized’ within the meaning of the Fourth Amendment.” 2014 WL 1377793, at *3. Thus, by making an application to “seize an entire e-mail account even though it had only established probable cause for some of the e-mails,” the Government was viewed in the D.C. Opinion as having asked the court “to issue a general warrant that would allow a general, exploratory rummaging in a person’s belongings’ — in this case an individual’s email account.” Id. (citing Coolidge, 403 U.S. at 467) (additional citation omitted).
This Court respectfully disagrees with the D.C. Opinion on this point because we believe it too narrowly construes the Fourth Amendment’s particularity requirement and is contrary to copious precedent. As an initial matter, we note that “[a]mple case authority sanctions some perusal, generally fairly brief, of … documents (seized during an otherwise valid search) … in order for the police to perceive the relevance of the documents to crime.” United States v. Mannino, 635 F.2d 110, 115 (2d Cir. 1980) (quoting United States v. Ochs, 595 F.2d 1247, 1257 n.8 (2d Cir. 1979)); accord Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976) (“In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”). As the Second Circuit has noted, “allowing some latitude in this regard simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked ‘drug records.'” United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990). With respect to the execution of search warrants seeking physical evidence, courts “permit[] the government to examine paper documents that might otherwise fall outside the scope of a search warrant to make that determination, recognizing [*13] that different types of evidence present different tactical issues.” Metter, 860 F. Supp. 2d at 213. In other words, courts have long recognized the practical need for law enforcement to exercise dominion over documents not within the scope of the warrant in order to determine whether they fall within the warrant. Such exercise of dominion essentially amounts to a “seizure” even if the seizure takes place at the premises searched and is only temporary. See, e.g., United States v. Jones, 132 S. Ct. 945, 958 (2012) (“A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.”) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotation marks omitted)).
In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search. Thus, “courts developed a more flexible approach to the execution of search warrants for electronic evidence, holding the government to a standard of reasonableness.” Metter, 860 F. Supp. 2d at 214; accord United States v. Graziano, 558 F. Supp. 2d 304, 317 (E.D.N.Y. 2008) (courts have afforded law enforcement “leeway in searching computers for incriminating evidence within the scope of materials specified in the warrant”) (citations omitted); United States v. Scarfo, 180 F. Supp. 2d 572, 578 (D.N.J. 2001) (“Where proof of wrongdoing depends upon documents … whose precise nature cannot be known in advance, law enforcement officers must be afforded the leeway to wade through a potential morass of information in the target location to find the particular evidence which is properly specified in the warrant.”); see also United States. v. Ganias, __ F.3d ___, 2014 WL 2722618, at *7-*8 (2d Cir. June 17, 2014) (“[T]he ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants.”).
The need to permit the Government to examine electronic materials off-site rather than require it to conduct an on-site search is most obviously demonstrated in the case of a search of a computer hard disk drive (“hard drive”), which is the part of a computer that actually stores files and documents. In the context of suppression motions, courts have routinely upheld the seizure or copying of hard drives and other storage devices in order to effectuate a proper search for the categories of documents or files listed in a warrant. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (the challenge of “searching for digital data that was not limited to a specific, known file or set of files” and the inability to “know[] which or how many illicit files there might be or where they might be stored, or of describing the items to be seized in a more precise manner” justified “seizure and subsequent off-premises search of [defendant’s] entire computer system and associated digital storage devices”); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a sufficient chance of finding some needles in the computer haystack.”) (citations and quotation marks omitted); United States v. Stabile, 633 F.3d 219, 234 (3d Cir. 2011) [*16] (rejecting requirement of “on-site” search of hard drives because the “practical realities of computer investigations preclude on-site searches”); United States v. Grimmett, 439 F.3d 1263, 1269 (10th Cir. 2006) (upholding seizure and subsequent off-site search of computer in a “laboratory setting”); United States v. Hay, 231 F.3d 630, 637 (9th Cir. 2000) (upholding seizure and search of an “entire computer system and virtually every document in [the defendant’s] possession without referencing child pornography or any particular offense conduct” because, although officers “knew that [a party] had sent 19 images [of child pornography] directly to [the defendant’s] computer, [they] had no way of knowing where the images were stored”); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (“As a practical matter, the seizure and subsequent off-premises search of the computer and all available disks was about the narrowest definable search and seizure reasonably likely to obtain the images [of child pornography sought].”). In other words, the seizure or “off-site imaging” (that is, copying) of computer hard drives is “a necessity of the digital era.” Metter, 860 F. Supp. 2d at 214; accord United States v. Bums, 2008 WL 4542990, at *5 (N.D. Ill. April 29, 2008) (“Courts have found that seizure of computer equipment before search is reasonable given the complexities of electronic searches, as long as the requirements of the Fourth Amendment are met.”).
In addition, the Federal Rules of Criminal Procedure were amended in 2009 to specifically provide for such a procedure. As stated in that rule:
A warrant under Rule 41 (e)(2)(A) 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 information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.
Fed. R. Crim. P. 41(e)(2)(B). The Advisory Committee notes to the 2009 amendments to Rule 41 explained the need for such a procedure: …
The Second Circuit has recently recognized that “[i]n light of the significant burdens on-site review would place on both the individual and the Government, the creation of mirror images for offsite review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be.” Ganias, 2014 WL 2722618, at *8. Thus, we view it as well-established that a search warrant can properly permit the Government to obtain access to electronic information for purposes of a search even where the probable cause showing does not apply to the entirety of the electronic information that is disclosed to the Government.
We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts. Indeed, in many cases, the data in an email account will be less expansive than the information that is typically contained on a hard drive. Therefore, we believe the case law we have cited concerning searches of hard drives and other storage media supports the Government’s ability to access an entire email account in order to conduct a search for emails within the limited categories contained in the warrant. Notably, every case of which we are aware that has entertained a suppression motion relating to the search of an email account — other than the D.C. Opinion, the Kansas Opinion and the cases cited in footnote 2 above — has upheld the Government’s ability to obtain the entire contents of the email account to determine which particular emails come within the search warrant. See United States v. Bach, 310 F.3d 1063, 1065 (8th Cir. 2002) (upholding as constitutionally reasonable the seizure of “all of the information” from defendant’s email account where the service provider did not “selectively choose or review the contents of the named account”); United States v. Ayache, 2014 WL 923340, at *2-3 (M.D. Tenn. March 10, 2014) (denying motion to suppress “seizure of all emails in a defendant’s account [] where there was probable cause to believe that the email account contained evidence of a crime”); United States v. Deppish, 2014 WL 349735, at *6-7 & n.37 (D. Kan. Jan. 31, 2014) (noting that “nothing in § 2703 precludes the Government from requesting the full content of a specified email account,” and concluding that such a search is not a “general search”); United States v. Taylor, 764 F. Supp. 2d 230, 232, 237 (D. Me. 2011) (upholding search of “all information associated with an identified Microsoft hotmail account”); United States v. Bowen, 689 F. Supp. 2d 675, 682 (S.D.N.Y. 2010) (Fourth Amendment does not require authorities to “ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching”); United States v. McDarrah, 2006 WL 1997638, at *9-10 (S.D.N.Y. July 17, 2006) (denying motion to suppress seizure of “[a]ll stored electronic mail and other stored content information presently contained in” a specified email account), aff’d, 351 F. App’x 558 (2d Cir. 2009).
