D.Kan.: USMJ scholarly opinion on history of email SWs; “Needless to say, a person’s email account may reveal their ‘privacies of life.’”

The government’s email account search warrant request is overbroad as to what is being seized. The court analogizes Riley and notes that email accounts can provide a detailed picture of a person’s life the same as a cell phone search. “Needless to say, a person’s email account may reveal their ‘privacies of life.’” This opinion is valuable and scholarly. In re Premises Known As: Three Hotmail Email Accounts: [Redacted]@hotmail.com, [Redacted]@hotmail.com, [Redacted]@hotmail.com Belonging to & Seized from [Redacted], 2016 U.S. Dist. LEXIS 40545 (D.Kan. March 28, 2016) (footnote numbers retained; footnotes omitted):

So what consequences does authorizing the seizure and/or search of an entire email account have on an individual’s privacy? Here are some examples.

• Person A is suspected of tax fraud. The warrant authorizes the search of Person A’s Hotmail account to look for evidence of tax fraud. In the course of the search, law enforcement discovers Person A has enlisted via email a hitman to kill someone. The government charges Person A with attempted murder and solicitation.

• Person B is suspected of possessing child pornography. The warrant authorizes the search of Person B’s computer hard drive. In the forensic search, law enforcement discovers Person B has conspired with others to defraud the investors of his business. The government uses that evidence against Person B in a suit for corporate conspiracy and fraud, arguing that because images can be “hidden” in many file types, the evidence is admissible under the plain view doctrine.

• Person C is suspected of drug trafficking. The warrant authorizes the search of Person C’s email account. Law enforcement discovers emails about an affair Person C was having. In court on charges of drug trafficking, the government attempts to use the emails regarding the affair as impeachment testimony.

• Person D, a high school principal, is suspected of tax evasion. The warrant authorizes the search of Person D’s email account. Law enforcement discovers emails that suggests-but does not prove-an inappropriate relationship between Person D and a student at the school. Even though law enforcement never charges Person D with any crime, including the tax evasion, the information leaks to the press or Twitter. As a result, Person D loses his job. What is more, this type of information is so damaging that Person D cannot get hired in a similar position anywhere. Person D has therefore lost his entire livelihood despite not being charged with a single crime.

While these are just hypothetical examples, the real case of United States v. Ganias highlight the dangers of authorizing, without limitation, the seizure and subsequent search of massive amounts of ESI. Professor Kerr recounts the facts of Manias:

Ganias is an accountant whose computers were searched twice pursuant to two different warrants. First, in 2003, agents investigating Ganias’s clients obtained and executed a warrant for client files stored on Ganias’s computers. At the physical search stage, the agents made image copies of all three of Ganias’s computer hard drives on site and brought the images into government custody for later analysis. By December 2004, the agents had searched the images and separated out the files that were responsive to the warrant from the files that were nonresponsive.

The second search occurred in 2006. By that time, agents developed probable cause to believe that Ganias himself was also guilty of crimes. Ganias had by then already deleted the incriminating data that had been stored on his computers. But this didn’t stop the case as the agents already had a copy of his files from the 2003 search. The incriminating evidence was in the set of nonresponsive files from the 2003 warrant that remained in government custody. The agents sought and obtained a second warrant to search the 2003 copies of Ganias’s files for Ganias’s own offenses. Executing the 2006 warrant on the copies in government custody revealed evidence of Ganias’s crime.75

The Second Circuit, in a now-vacated opinion, held that the 2003 warrant authorized the indefinite seizure of responsive files, but it did not give the agents unlimited authority to indefinitely seize and then use nonresponsive files.76 The Court further held that obtaining the 2006 warrant did not cure the wrongful, permanent seizure of non-responsive files because it “reduces the Fourth Amendment to a form of words.”77 So even though the Court has couched its argument in terms of general warrants, the Court is simultaneously discussing Americans’ right to privacy and the governmental intrusions into that privacy that these types of warrants authorize. These privacy concerns underlie the remainder of this Memorandum Opinion.

. . .

1. Application Paragraph 4—Step Two, or the Things to be Seized

Paragraph 4 of the Application authorizes the government to review the information provided by Microsoft and specifies what the government may seize for its investigation. The Court remains concerned that the warrant is overly broad [*40] as to the things to be seized. Even though the government has established probable cause to seize ESI occurring since September 7, 2008 that is related to violations of specific statutes and/or seven people or entities, the government has not established probable cause as to the rest of the ESI, which it has seized upon disclosure from Microsoft. While nothing in § 270380 or Fed. R. Crim. P. 41 may specifically preclude the government from requesting all ESI contained within a specific email account, the Fourth Amendment does.

The Court remains concerned that each of the target email accounts may—and likely do—contain large numbers of emails and files unrelated to the alleged crimes being investigated and/or for which the government has no probable cause to search or seize. Email II explained these warrants are akin to “a warrant asking the post office to provide copies of all mail ever sent by or delivered to a certain address so that the government can open and read all the mail to find out whether it constitutes fruits, evidence or instrumentality of a crime. The Fourth Amendment would not allow such a warrant and should therefore not permit a similarly overly broad warrant just because the information sought is in electronic form rather than on paper.”

Riley bolsters that conclusion. While Riley only decided whether a search of a cellphone incident to lawful arrest required a warrant, the Court’s dicta concerning the intersection of technology and privacy vis-à-vis the Fourth Amendment nevertheless reinforces this Court’s interpretation of the Fourth Amendment’s probable cause and particularity requirements and underscores why a search protocol is necessary.

Almost every statement made in Riley with respect to cell phones applies equally to email accounts. “One of the most notable distinguishing features of modern cell phones is their immense storage capacity … [of which] the current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes).” A free email account from a major provider such as Google, Yahoo!, or Microsoft comes with at least 15 gigabytes of storage. “Cell phones couple that capacity with the ability to store many different types of information … [such as] photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on.” Email is no different. As with “apps” on cellular phones, “[t]here are [emails] for Democratic Party news and Republican Party news; [emails] for alcohol, drug, and gambling addictions; [emails] for sharing prayer requests; [emails] for tracking pregnancy symptoms; [emails] for planning your budget; [emails] for every conceivable hobby or pastime; [emails] for improving your romantic life.” Needless to say, a person’s email account may reveal their “privacies of life.”

Like cell phones, an email account is often the home of a person’s identity—both on- and off-line, but especially on-line. An email address is required for almost every online service, including Facebook, Twitter, Instagram, Amazon, Foursquare, LinkedIn, and TurboTax. Because of this, an email account may contain such an aggregate of information from each online service so as to constructively contain an image of those outside accounts. Consider Facebook. Jane Doe may allow Facebook to send her an email for each friend request, invitation to an event, “like” or comment on their status, private message, or transfer of money to a friend. If the government is allowed to seize and search Jane’s entire email account, it could potentially reconstruct Jane’s entire Facebook account. Or consider Foursquare, which allows users to “check-in” at a location. Once an Email Provider discloses all ESI associated with a target account, the government may have that individual’s whereabouts for the past day, week, month, or even several years, which is precisely what concerned Justice Sotomayor in United States v. Jones. The search of an email account “would typically expose to the government far more than the most exhaustive search of a house: [An email account] not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.” The Court is therefore concerned that targeting email addresses may be used as a way to gain a two-for-one warrant special—wherein the government gains both the email account and a reconstruction of the account holder’s other social media accounts without obtaining a separate warrant for those accounts.

The Court is also concerned with the inclusion of the phrase “and others known and unknown,” which follows the list of people, usernames, and the domain name. The Court believes the government included this phrase to cover the seizure of evidence that it may come across during the course of searching the target email accounts. In other words, the Court construes the phrase to mean that, should the government, in its search of the target email accounts, connect the username “Megatron135″ with either the named statutes or named people for which the government has established probable cause, it be allowed to seize that content even though “Megatron135″ was not expressly named in the warrant. Or, as SDNY Email puts it:

[I]n a drug investigation, it might be obvious based on information from an informant or other source that emails referring to the purchase or importation of “dolls” refers to cocaine, but investigators might only learn as the investigation unfolds that a seemingly innocuous email referring to purchase of “potatoes” also refers to a cocaine shipment.

This Court believes that phrase runs afoul of the particularity requirement of the Fourth Amendment because of the difference between the physical world and the digital world. As discussed earlier, a single letter or digit could be the difference between an individual for which the government has probable cause and a person for which the government does not have probable cause. For instance, in this case, say the government observes that “pipeline” refers to a particular computer vulnerability. On those facts, this Court might agree that evidence may be seized. In contrast, “Megatron135″ may in fact be an innocent third party, whose communications have now been seized even though the government has not shown probable cause that Megatron135 is related to the scheme. Put another way, words referring to drugs present little, if any, risk of constitutional infringement, whereas people’s names or usernames—obtained through a search of someone else’s email account—present a high risk of constitutional infringement regarding the third party’s right to privacy.

Given the vast amount of information potentially contained in an individual’s email account, the Court finds the current Application violates the Fourth Amendment’s probable cause and particularity requirements. But, as will be explained later, the Court believes these concerns may be alleviated through the use of ex ante instructions. Before discussing some of those instructions, the Court addresses its concern regarding particularity with respect to the place to be searched.

2. Application Paragraphs 2 & 3—Step One, or the Place to be Searched

Application paragraphs 2 and 3 implement Step One of Rule 41′s Two-Step Procedure, which, in turn, addresses the “place to be searched” as used in the Fourth Amendment. “To determine if the place to be searched is particularly described, courts ask whether the description is sufficient ‘to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.’” The Court finds this Application is not sufficiently particular with respect to the place to be searched. SDNY Email and DC District Email both conclude that the identification of the target email address itself—here, [redacted]@hotmail.com —is a sufficiently particular description. That view is tempting because, after all, Microsoft will only disclose the ESI of the target email address listed in the warrant, making it virtually impossible that an executing officer might mistakenly search another “premises.” But this Court disagrees for two interrelated reasons, and it is for these reasons the Court believes that these types of warrants should include ex ante instructions.

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