D.Kan.: There must be a search protocol for cell phone searches to prevent general searches

There must be a search protocol for cell phone searches to prevent general searches. In re Cellular Telephones, 2014 U.S. Dist. LEXIS 182165 (D.Kan. December 30, 2014). This is an important opinion, and it’s free online:

Further, cell phones allow a person to access a wide variety of personal data stored with third party Internet service providers (“ISP”), such as email accounts, social media accounts, and accounts dedicated specifically to the end of going entirely digital. Applications like Dropbox and Google Drive utilize cloud computing to allow users to centralize their data storage so that it can be accessed remotely from any device with an Internet connection. These developments are indicative of both the remarkable progress being made in the technological sphere, and the challenge courts face in applying precedent to an increasingly complex and technologically-advanced world. As the practices of syncing devices and using the cloud become more prevalent, the ability of courts to limit the scope of proposed warrants to places and things for which the government has probable cause to search becomes far more difficult. A warrant for the search of an individual’s cell phone may, in some cases, be practically equivalent to a warrant for the search of the individual’s entire digital presence wherever found. The question then becomes: does a warrant authorizing the search of a cell phone also authorize the search of data, accessible via the cell phone, but not actually stored there? If so, the potential for abuse becomes abundantly clear. For instance, in Riley, the government conceded that the search of a cell phone incident to arrest may not include “a search of files in the cloud.” “Such a search,” the Court stated, “would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.”

Some courts have already allowed this practice, to a certain degree, with regard to email accounts. The information contained in email accounts is stored with an ISP, but is accessible via many modern cell phones. Email accounts can contain a vast amount of various types of personal information, which render them, for purposes of Fourth Amendment analysis, very similar to cell phones and hard drives.49 Given this similarity, it seems counterintuitive that a warrant should be required for the search of a cell phone, but not for the search of an email account, simply because the email account is accessible via the cell phone.

The prospective dangers of unrestricted warrants are innumerable. For instance, if the government desires to search an individual’s hard drive, but cannot establish probable cause to do so, it could likely obtain a search warrant for the individual’s cell phone instead. Given the understanding that personal devices are often networked and/or are sharing information in the cloud, the government could potentially access the information it sought from the hard drive via the cell phone, essentially circumventing the Fourth Amendment’s probable cause requirement. The practical effect of these types of warrants, if granted without further limitation as to their scope, would be that every warrant issued for the search of ESI would give the government carte blanche to examine the entirety of an individual’s digital presence with impunity. This effect would plainly be an affront to the Fourth Amendment as contemplated by the Founders. Thus, the Fourth Amendment particularity requirement takes on increased importance with regard to the search and seizure of ESI, and courts must take special care when authorizing a warrant in these cases.

Of course, the Fourth Amendment’s text must be malleable to the practical realities of modern day searches. “The fact of an increasingly technological world is not lost upon us as we consider the proper balance to strike between protecting an individual’s right to privacy and ensuring that the government is able to prosecute suspected criminals effectively.” After all, “[t]he warrant process is primarily concerned with identifying what may be searched or seized — not how.” Thus, a warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[,]” and “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Some courts have pointed out that, in many ways, requesting a search protocol before issuing a warrant is putting the cart before the horse. On this point, there are a few important things to note.

First, while it may be true that the reasonableness of the manner of search is subject to ex post judicial determination, it is important to recognize that “[t]here is interplay between probable cause, particularity, and reasonableness that judicial officers reviewing a warrant application must consider in authorizing a form of privacy invasion.” Admittedly, “[n]othing in the language of the Constitution or in th[e] Court’s decisions interpreting that language suggests that, in addition to the requirements set forth in the text [of the Fourth Amendment], search warrants also must include a specification of the precise manner in which they are to be executed.” However, “[n]othing in the Fourth Amendment precludes a magistrate from imposing ex ante warrant conditions to further constitutional objectives such as particularity in a warrant and the least intrusion necessary to accomplish the search.” In cases where this Court has required ex ante search protocol, it has been not in addition to the requirements of the Fourth Amendment, but in satisfaction of them. This use of ex ante restrictions in search warrants is far from a novel concept. And, while the Court recognizes that the nature of ESI makes satisfaction of the Fourth Amendment requirements inherently more difficult than in traditional contexts involving the search and seizure of physical objects, it cannot be said to be entirely uncharted territory. As the Supreme Court of Vermont noted:

[T]he need for a nonphysical concept of particularity is one that the courts have already confronted. Warrants for electronic surveillance routinely set out “minimization” requirements-procedures for how and under what conditions the electronic surveillance may be conducted-in order to “afford[ ] similar protections to those that are present in the use of conventional warrants authorizing the seizure of tangible evidence.”

These provisions in the warrants are ex ante conditions on how a search may be conducted, but we believe they are well within the scope of a judicial officer’s role in ensuring that searches are targeted with sufficient particularity. The same reasoning applies with even more force in the computer context.

This Court agrees. In making a particularity determination with regard to a warrant for ESI, reasonableness of the manner of search is necessarily implicated because particularity and reasonableness are functionally related. A proposed warrant must particularly describe both the place to be searched and the things to be seized. “As the description of such places and things becomes more general, the method by which the search is executed becomes more important — the search method must be tailored to meet allowed ends.” It would be a “serious error,” then, “to infer from the fact that we must often evaluate ex post whether a search sufficiently respected a citizen’s privacy to the conclusion that we can make no ex ante judgments about what sort of privacy invasions are and are not warranted.”

The second point to note is that the Court is not requesting a search protocol in order to dictate how the warrant is executed. This Court readily acknowledges that not every search is created equal and not every warrant must include search protocol to comply with the Fourth Amendment. The government is free to determine the best procedures and techniques to use, so long as the government provides notice as to what the procedures are. This notice, in the form of an enumerated search protocol, helps the court to determine if the proposed warrant satisfies the requirements of the Fourth Amendment, that is, whether the search and seizure requested will be governed by sufficient boundaries and limits to ensure the protection of the Fourth Amendment rights of the individual whose property is subject to the warrant.

Simply put, “[p]articularity is the requirement that the warrant must clearly state what is sought.” The Tenth Circuit has established the general standard for evaluating when the Fourth Amendment’s particularity requirement has been met:

A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized. Even a warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under the investigation permit. However, the Fourth Amendment requires that the government describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.

The government must provide the court with as specific a description of the place to be searched and the things to be seized as the circumstances reasonably allow. Failure to do so “offends the Fourth Amendment because there is no assurance that the permitted invasion of a suspect’s privacy and property are no more than absolutely necessary.”

ESI, by its nature, makes this task a complicated one. Regarding the place to be searched, the Supreme Court of Vermont adeptly noted that, “[i]n the digital universe, particular information is not accessed through corridors and drawers, but through commands and queries. As a result, in many cases, the only feasible way to specify a particular ‘region’ of the computer will be by specifying how to search.” Similarly, in attempting to describe the things to be seized, “[o]ften the way to specify particular objects or spaces will not be by describing their physical coordinates but by describing how to locate them.” By providing a search protocol explaining how it will separate what is permitted to be seized from what is not, the government can more easily and satisfactorily explain to the court how it will decide where it is going to search. In doing so, the government should not compromise the thoroughness of its description by trying to avoid the use of technical language. In fact, the court wants a “sophisticated technical explanation of how the government intends to conduct the search so that [it] may conclude that the government is making a genuine effort to limit itself to a particularized search.” The search protocol is “squarely aimed at satisfying the particularity requirement of the Fourth Amendment” and must be as detailed as specifically as possible to do so.

The final point of note is that, without a search protocol, ex ante, the balance — between an individual’s right to privacy and the government’s ability to efficiently and effectively investigate crimes-swings too far in favor of the government. One of the main ways courts have balanced these interests with regard to ESI is by permitting the government to copy an individual’s hard drive for off-site review, a practice authorized in certain circumstances by Rule 41 of the Federal Rules of Criminal Procedure. Use of this two-step process implicates another necessary facet of the use of ex ante restrictions in the satisfaction of the Fourth Amendment. To be certain, “[m]ere convenience does not allow the government to violate the Fourth Amendment and seize data wholesale.” (footnotes omitted)

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