E.D.Pa.: Seizure of years of emails by SW for later discriminating search was still reasonable

This email search warrant sought specific information over a several year period, and the Google production was somewhat limited yet still substantial. Yet, included were emails between attorney and client and there were no search protocols. The court declines to follow Comprehensive Drug Testing on search protocols. The large production was provided and then it was searched by the government for what was material. This was not unlike seizing an entire computer drive and searching it off-site, which is the only practical way to do it. Overall, the process was reasonable. United States v. Harder, 2016 U.S. Dist. LEXIS 181556 (E.D.Pa. April 18, 2016):

Here, in Attachment B to each warrant, the Government detailed precisely the items to be seized, including only those documents relating to, inter alia, the alleged EBRD bribery and money laundering schemes. The warrants further required that any seized emails involve the Subjects and pertain to seven enumerated categories. (Doc. No. 79, Exs. A & B, Attachs. B (identifying relevant communications and records.).) Both warrants also included a temporal limitation on the emails to be seized: from February 1, 2007 forward. These requirements more than suffice to identify the relevant period, constrain the reviewing agents’ discretion, and limit the warrants’ scope.

Defendant nonetheless argues that the warrants were deficient because they lacked “search protocols.” He relies on a suggestion in a concurring Ninth Circuit opinion that warrant applications for electronic seizures include search protocols to prevent investigating agents from “examining or retaining any data other than that for which probable cause is shown.” United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1179 (9th Cir. 2010) (Kozinski, C.J., concurring). The en banc majority in Comprehensive Drug Testing did not impose such a requirement, however. Indeed, courts that have addressed the issue—including the Third Circuit—have not followed Judge Kozinski’s suggestion. See, e.g., Stabile, 633 F.3d at 234 (permitting the seizure and subsequent off-site search of six hard drives pursuant to a search warrant lacking an ex ante search protocol); United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005) (search warrant need not “contain a particularized computer search strategy”); United States v. McNamara-Harvey, No. CRIM.A. 10-219, 2010 U.S. Dist. LEXIS 106141, 2010 WL 3928529, at *4 (E.D. Pa. Oct. 5, 2010) (rejecting Defendant’s overbreadth argument based on Comprehensive Drug Testing); United States v. Bowen, 689 F. Supp. 2d 675, 681 (S.D.N.Y. 2010) (“[W]e join … several other federal courts in holding that the Fourth Amendment does not require a search warrant to specify computer search methodology.”), aff’d sub nom., United States v. Ingram, 490 F. App’x 363 (2d Cir. 2012); United States v. Fumo, No. CRIM.A. 06-319, 2007 U.S. Dist. LEXIS 80543, 2007 WL 3232112, at *6 (E.D. Pa. Oct. 30, 2007) (“[S]earch protocols and keywords do not mark the outer bounds of a lawful search; to the contrary, because of the nature of computer files, the government may legally open and briefly examine each file when searching a computer pursuant to a valid warrant.”). Defendant’s reliance on Comprehensive Drug Testing is thus unpersuasive.

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Because the seizure of electronic data necessarily requires two steps—the internet service provider produces all potentially responsive data, and an independent technician then segregates and reviews that data to ensure warrant compliance—any failure to provide Google and 1&1 with the underlying affidavits did not violate the Fourth Amendment. In these circumstances, providing the affidavits to the providers would have been pointless. See, e.g., United States v. Bach, 310 F.3d 1063, 1065-66 (8th Cir. 2002) (“According to Yahoo!, when executing warrants, technicians do not selectively choose or review the contents of the named account … Yahoo!’s execution of the search warrant in this case did not violate [Defendant’s] Fourth Amendment rights); United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); United States v. Scully, 108 F. Supp. 3d 59, 95 (E.D.N.Y. 2015) (“[E]very 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.”); 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, 395 (S.D.N.Y. 2014) (“Google Warrant”) (“Not surprisingly, courts have routinely rejected arguments made in the course of suppression motions that a warrant should have required a third party to conduct searches of electronic information.”). In sum, the warrants’ execution was thus proper and reasonable.