D.Alaska: Second SW for everything in six email accounts is overbroad; prior SW was limited and motion to compel should be filed

Google declined to respond to a search warrant for content of six email accounts for a six month range because of overbreadth. There was probable cause. Instead of seeking to enforce the search warrant against Google, the government issues a second search warrant seeking literally everything in the accounts back to the beginning of the accounts. The second application is overbroad. Google’s untested claims as to the first search warrant should be heard. In re Google Email Accounts Identified in Attachment A, 2015 U.S. Dist. LEXIS 26533 (D.Alaska March 3, 2015)

Before the Court is the government’s ex parte search warrant application seeking compelled disclosure of all email content associated with six third-party Gmail accounts hosted by Google, Inc. (Google) pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. §§ 2703(a), 2703(b)(1)(A), and 2703(c)(1)(A). The application is tendered in connection with an ongoing investigation into suspected sexual exploitation of children. The application represents the government’s second attempt to seize the content of emails from these six third-party email accounts. This Court granted the government’s first application authorizing the seizure of email content from these accounts based on the government’s probable cause showing for the limited time periods set forth in the application. Google declined to comply with the search warrant.

The government’s current search application followed Google’s untested claim that it is incapable of producing the requested email content for the limited time periods set forth in the first warrant. Instead of challenging this assertion, the government now presents the current application which seeks the entire content of the six third-party Gmail accounts without the time period limitation contained in the first warrant. The new application does not explain why such broad search and seizure authority is reasonable under the circumstances of the case. And while the government promises to limit its search to the relevant date ranges, nothing in the proposed warrant precludes its agents from perusing other email content regardless how remote or how unrelated that content may be to the current investigation. Under these circumstances, Search Warrant Application 3:14-mj-00387-KFM must be denied as overbroad. This order will explain why this result is compelled by the Fourth Amendment. Because the order addresses matters related to an ongoing investigation, it has been drafted in a manner designed not to compromise that investigation.

Of course, the government remains free to seek an order compelling Google to comply with the earlier warrant provided it limits the request to email content for the narrowly defined periods relevant to the investigation of the six third-party Gmail accounts. Alternatively, the government can renew the instant application if it proffers to seal, without any review absent further court order, material supplied by Google that is outside the time period for which probable cause has been established.