N.D.Ga.: Govt’s email search protocol satisfied particularity despite large initial seizure

The government’s protocol for searching defendant’s emails satisfied the particularity requirement. All the emails were produced, but the government searched within them only for emails relating to copyright infringement, the crime under investigation. Other cases are in accord. United States v. Lee, 2015 U.S. Dist. LEXIS 102473 (N.D.Ga. July 6, 2015):

The warrants in this case were not general warrants because they described with sufficient particularity not only the information to be disclosed from Lee’s Gmail accounts, but also the specific evidence which the government was allowed to seize from within that body of information. That is, while Attachment A of the warrants required Google to disclose the entire contents of the accounts, Attachment B limited the items authorized to be seized by the government to evidence reasonably connected to the crime of copyright infringement based upon the indicia of probable cause in the affidavits. The warrants thus properly constrained the discretion of the executing agents and enabled them to reasonably ascertain and identify the limited information which was authorized to be seized. Because the warrants authorized the searching agents to review the information obtained from Lee’s Gmail accounts only for evidence relevant to the government’s investigation of the crime of copyright infringement, and not for evidence of general criminal activity or evidence otherwise defined by some open-ended criteria that would permit a free-range seizure of information from Google’s disclosure, they did not allow a “general, exploratory rummaging” in violation of the Fourth Amendment’s particularity requirement, and Lee’s argument in this regard is without merit. See United States v. Maharaj, No. 07-80024-CR-CR, 2007 U.S. Dist. LEXIS 102622, 2007 WL 2254559, at *11 (S.D. Fla. Aug. 2, 2007), adopted 2007 U.S. Dist. LEXIS 56385, [WL] at *1 (quoting United States v. Wuagneux, 683 F.2d 1343, 1348-49 (11th Cir. 1982)).

Indeed, the two-step procedure employed by the government to review the email accounts in this case—first obtaining the disclosure from Google and subsequently reviewing the disclosure for the items specified in the warrants—is explicitly authorized by Rule 41 of the Federal Rules of Criminal Procedure, and federal courts around the country have consistently upheld similar email search warrants utilizing this same procedure as constitutional under the Fourth Amendment. See United States v. Tsarnaev, 53 F. Supp. 3d 450, 458 (D. Mass. 2014); In the Matter of Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F. Supp. 3d 157, 165-66 (D.D.C. 2014); In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d 386, 394 (S.D.N.Y. 2014) (collecting cases) (“Notably, every case of which we are aware that has entertained a suppression motion relating to the search of an email account 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.”); United States v. Lustyik, No. 2:12-CR-645-TC, 2014 U.S. Dist. LEXIS 54819, 2014 WL 1494019, at *7 (D. Utah Apr. 16, 2014) (citations omitted) (language in warrants which limited the evidence investigators could seize “was more than sufficient to limit the scope of the warrants, and prevent[ed] the warrants from being generalized warrants”); United States v. Deppish, 994 F. Supp. 2d 1211, 1219-21 (D. Kan. 2014) (search warrant appropriately required email service provider to disclose the entire contents of email account, where the warrant further limited the information to be seized from those contents to evidence of a particular crime); United States v. Taylor, 764 F. Supp. 2d 230, 237 (D. Me. 2011) (footnote omitted) (“The Fourth Amendment does not require the government to delegate a prescreening function to the internet service provider or to ascertain which [pieces of online information] are relevant before copies are obtained from the internet service provider for subsequent searching.”).

To the extent Lee argues that the warrants were not sufficiently particularized because they lacked a temporal limitation on the information to be disclosed from the accounts, see [Doc. 54 at 7-14 (arguing in part that the warrants were general warrants because they included no temporal limitations on the information sought)], the Court finds that the warrants were already adequately particularized based on the subject matter limitation to evidence relating to criminal copyright infringement, and therefore an additional temporal limitation was not required. Moreover, as the government points out, the agents had “good reason not to include a temporal limitation in the warrants,” since they did not know, when they obtained the warrants, whether Applanet existed in some other form at the time the accounts were first opened in 2004, and since, even assuming certain emails predated the alleged onset of the criminal activity forming the basis of the warrant applications, those emails might nevertheless prove relevant to determining the identity of the defendants involved and the ownership of the accounts in question, which could be important for authenticating the evidence and laying a proper foundation. See [Doc. 71 at 11-13]; see also United States v. Intakanok, No. CR 114-060, 2014 U.S. Dist. LEXIS 135515, 2014 WL 4825368, at *8 (S.D. Ga. Sept. 25, 2014) (finding that “warrants were properly limited to searching the email account … for specific categories of information that bear an obvious relationship to the crime alleged,” including “information concerning ownership and user identification for the email account”); In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d at 399. Accordingly, the warrants meet the particularity requirement of the Fourth Amendment, and any evidence seized pursuant to the warrants is not due to be suppressed on the basis that the warrants were unconstitutionally overbroad.