CA2: Computer SW was sufficiently particular; broad doesn’t mean necessarily unreasonable

In the Silk Road “drug kingpin” conviction, whether the third party doctrine succumbs to technology is going to have to come from SCOTUS since the doctrine came from it. The search warrant for defendant’s computer was sufficiently particular. Broad for computers is not necessarily unparticular. United States v. Ulbricht, 2017 U.S. App. LEXIS 9517 (2d Cir. May 31, 2017):

“Where, as here, the property to be searched is a computer hard drive, the particularity requirement assumes even greater importance.” Id. A general search of electronic data is an especially potent threat to privacy because hard drives and e-mail accounts may be “akin to a residence in terms of the scope and quantity of private information [they] may contain.” Id. The “seizure of a computer hard drive, and its subsequent retention by the government, can [therefore] give the government possession of a vast trove of personal information about the person to whom the drive belongs, much of which may be entirely irrelevant to the criminal investigation that led to the seizure.” United States v. Ganias, 824 F.3d 199, 217 (2d Cir. 2016) (en banc). Such sensitive records might include “[t]ax records, diaries, personal photographs, electronic books, electronic media, medical data, records of internet searches, [and] banking and shopping information.” Id. at 218. Because of the nature of digital storage, it is not always feasible to “extract and segregate responsive data from non-responsive data,” id. at 213, creating a “serious risk that every warrant for electronic information will become, in effect, a general warrant,” Galpin, 720 F.3d at 447 (internal quotation marks omitted). Thus, we have held that warrants that fail to “link [the evidence sought] to the criminal activity supported by probable cause” do not satisfy the particularity requirement because they “lack[] meaningful parameters on an otherwise limitless search” of a defendant’s electronic media. United States v. Rosa, 626 F.3d 56, 62 (2d Cir. 2010).

The Fourth Amendment does not require a perfect description of the data to be searched and seized, however. Search warrants covering digital data may contain “some ambiguity … so long as law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant.” Galpin, 720 F.3d at 446 (internal quotation marks omitted).

Moreover, it is important to bear in mind that a search warrant does not necessarily lack particularity simply because it is broad. Since a search of a computer is “akin to [a search of] a residence,” id., searches of computers may sometimes need to be as broad as searches of residences pursuant to warrants. Similarly, traditional searches for paper records, like searches for electronic records, have always entailed the exposure of records that are not the objects of the search to at least superficial examination in order to identify and seize those records that are. And in many cases, the volume of records properly subject to seizure because of their evidentiary value may be vast. None of these consequences necessarily turns a search warrant into a prohibited general warrant.

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