S.D.N.Y.: “Particularity is not to be confused with breadth — they are ‘related but distinct concepts.’”

A broad Facebook warrant for electronically stored information was not unconstitutionally overbroad. “Particularity is not to be confused with breadth — they are ‘related but distinct concepts.’” A Facebook warrant can be issued in New York and served on Facebook’s headquarters in California under the SCA. United States v. Purcell, 2018 U.S. Dist. LEXIS 156648 (S.D. N.Y. Sep. 14, 2018):

Particularity is not to be confused with breadth — they are “related but distinct concepts.” Ulbricht, 858 F.3d at 102. “A warrant may be broad, in that it authorizes the government to search an identified location or object for a wide range of potentially relevant material, without violating the particularity requirement.” Id. The acceptable breadth of a warrant is directly proportional to the breadth of probable cause. A warrant’s “description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.” Galpin, 720 F.3d at 446.

. . .

Here, as the DaSilva affidavit explained, the crime that was being investigated extended over many years. A 2016 public post from the Hill Account, which was included in a DaSilva affidavit submitted in support of the November 2016 Warrant application, indicates that Purcell was engaged in the charged unlawful activity as early as 1999. In another 2016 post described in the same affidavit, the defendant posted two pictures of a woman on a bed with a pile of cash and the explanation, in effect, that all he did was collect money from the women who worked for him as prostitutes. Based upon the information provided in the DaSilva affidavits, there was probable cause to believe that the Hill Account was used directly and significantly in the promotion of prostitution since its creation in 2008.

There was also probable cause to believe that each of the twenty-four enumerated categories of ESI requested in the warrant would contain evidence of the specified crimes. The Second Circuit has held that “[w]hen … criminal activity pervades [an] entire business, seizure of all records of the business is appropriate, and broad language used in warrants will not offend the particularity requirements.” U.S. Postal Serv. V. C.E.C. Servs., 869 F.2d 184, 187 (2d Cir. 1989). The defendant has not identified any one of the twenty-four enumerated categories as one for which there was not sufficient probable cause presented in the DaSilva Affidavit to find that evidence of the identified criminal activity may be found in the search. When there is probable cause to believe that criminal activity pervades a social media account, it is appropriate for a warrant to authorize access to correspondingly broad categories of data.