S.D.N.Y.: Email warrant need only show “fair probability” evidence would be found in it; all emails for three years not overbroad in conspiracy case

Defendant’s email account, shown on a website as a “contact” email address, was accessed by a search warrant for evidence of her being involved in a fraud against the government. Direct evidence that an email account actually contains evidence is not required: It is a “fair probability” that evidence would be found. More difficult is potential overbreadth, but the court concludes that the warrant could not be more specific, and the three years of emails from the conspiracy period could be word searched. Searching emails is not unlike searching files in paper cases. In any event, the clauses of search warrants are severable. United States v. Barnes, 2013 U.S. Dist. LEXIS 189631 (S.D.N.Y. October 21, 2013):

Barnes’s basic argument is that even if the limitations on the scope of the seizure would render that seizure, standing alone, permissible under Galpin, the fact that the ISPs first disclosed to the Government all of the information listed in the warrants’ “disclosure” sections — essentially, the entire contents of the two email accounts—made the procedures authorized by the warrants “tantamount to a general search.” Def. Br. at 11. The Court disagrees.

Barnes’s argument is not without intuitive appeal, and the Court is conscious that searches involving stored digital content raise unique privacy concerns. Cf. Galpin, 720 F.3d at 447 (“[A]dvances in technology and the centrality of computers in the lives of average people have rendered the computer hard drive akin to a residence in terms of the scope and quantity of private information it may contain.”). However, the Supreme Court recognized long ago that searching for files is not like searching for tangible objects, because it is impossible to know whether a given file contains relevant evidence without looking at it. See Andresen v. Maryland, 427 U.S. 463, 482, 96 S. Ct. 2737, 49 L. Ed. 2d 627 n.ll (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.”). The same is true with computer hard drives and, as in this case, email accounts. See Bowen, 689 F. Supp. 2d at 682 (“In a search for electronic documents such as e-mails, ‘the actual content of a computer file usually cannot be determined until it is opened with the appropriate application software on a computer’ or until each file is analyzed by a program capable of searching the files for specific content.” (quoting United States v. Lamb, 945 F. Supp. 441, 458 (N.D.N.Y. 1996))). The Government is thus correct that the search protocol used in this case is not “remotely atypical,” Gov. Opp. at 8; see Vilar, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *35 (“it is frequently the case with computers that the normal sequence of ‘search’ and then selective ‘seizure’ is turned on its head” (quoting In re Search of 3817 W. West End, 321 F. Supp. 2d 953, 958 (N.D. Ill. 2004)) (internal quotation marks omitted)), and the mere fact that the warrants required the ISPs to initially disclose the entire contents of Barnes’s accounts to the Government does not render them invalid.

. . .

In Galpin, the Second Circuit adopted a severability test originally established by the Tenth Circuit. See 720 F.3d at 448 (citing United States v. Sells, 463 F.3d 1148, 1155-58 (10th Cir. 2006)). A court must first “separate the warrant into its constituent clauses,” then “examine each individual clause to determine whether it is sufficiently particularized and supported by probable cause,” and finally “determine whether the valid parts are distinguishable from the nonvalid parts.” Id. at 448-49. “In sum, the court must be able to excise from the warrant those clauses that fail the particularity or probable cause requirements in a manner that leaves behind a coherent, constitutionally compliant redacted warrant.” Id. at 449.

Under that standard, the warrants’ constituent clauses are separable, and their valid parts are distinguishable from their invalid parts. As the Government suggests, if one were to remove the “smuggling” clauses entirely, the warrants’ “seizure” sections would first authorize the seizure of all of the information disclosed by the ISPs—both content and non-content—that “constitutes fruits, evidence and instrumentalities of the charged crimes. Harris Decl. Ex. D. After that initial clause, the warrants become clarificatory; excluding the “smuggling” clauses, they would provide merely that the seizure authorized by the initial clause “includ[es]” certain categories of information, such as transactional information, business records and subscriber information, and records of who “created, used, or communicated with” the accounts. Id. Although excising the “smuggling” clauses would thus remove a (perhaps helpful) clarification that the authorized seizure included “electronic mail, private messages, and other content information,” it would not affect whether the seizure of such information was, in fact, authorized. And because that authorization references the specific kinds of files described in the “disclosure” sections and is limited by reference to the crimes with which Barnes was charged, the remaining sections of the warrants are valid. See Galpin, 720 F.3d at 446; United States v. Levy, No. 11 Cr. 62 (PAC), 2013 U.S. Dist. LEXIS 25508, 2013 WL 664712, at *9 (S.D.N.Y. Feb. 25, 2013); United States v. Dupree, 781 F. Supp. 2d 115, 148-49 (E.D.N.Y. 2011).

Cited with approval in United States v. Romain, 2014 U.S. Dist. LEXIS 166500 (S.D.N.Y. December 1, 2014).