CA4: Broad social media SWs in sex trafficking case explained

This is a MS-13 sex trafficking appeal. Facebook warrants were issued for communications that were sent via private message. There was a substantial basis for the issuance of the warrants: “The warrant affidavits in this case were well-sourced. They incorporated information from a reliable witness, the experience of an agent well-versed in the workings of MS-13, and—with each successive warrant—an increasingly incriminating chain of messages that tethered successive Facebook accounts to the larger conspiracy. In light of the thoroughness of the affidavits, the magistrates quite properly found probable cause.” Moreover, the wide ranging nature of this conspiracy permitted a broad warrant. United States v. Zelaya-Veliz, 2024 U.S. App. LEXIS 3699 (4th Cir. Feb. 16, 2024). The process for social media warrants:

This distinction between what may be searched and what can be seized counsels the government to execute social media warrants through a two-step process. This process—whereby the government first obtains a large amount of account data then seizes only the fruits, evidence, or instrumentalities of enumerated crimes—is crucial to the validity of social media warrants. As in a search of a house, the officers searching the Facebook account data at issue necessarily encountered a host of irrelevant materials. But, just like in a house search, the officers were authorized to seize only the fruits, evidence, or instrumentalities of the crimes for which they had established probable cause.

The validity of this two-step process is acknowledged by Federal Rule of Criminal Procedure 41(e)(2)(B) and its commentary, which permit officers, in searching electronically stored information pursuant to a warrant, to “seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.” Fed. R. Crim. P. 41(e)(2)(B) Committee Notes on Rules—2009 Amendment. While “the Fourth Amendment generally leaves it ‘to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant,'” Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir. 2020) (quoting Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979)), the two-step process, as laid out in Rule 41, helps to mitigate particularity concerns in the social media warrant context. See United States v. Mercery, 591 F. Supp. 3d 1369, 1382 (M.D. Ga. 2022) (noting the “general practice for agents to comply with Rule 41 by creating a two-step process—the ‘search’ wherein the warrant will compel the third party to produce a broad array of electronic information, and the ‘seizure’ wherein the warrant will authorize the seizure of [] specified information.”).

Contrary to the appellants’ claims, this two-step process is not toothless. Rule 41 and the terms of the warrants at issue ensured that the government executed the warrant in a reasonable manner. The district court retained the authority to determine that prolonged retention of non-responsive data by the government violated the Fourth Amendment. See J.A. 120 (finding that “the Government was authorized and is authorized to proceed with this two-step procedure, and that at this point it cannot be said that the time period to complete that process has expired.”). This authority derives from the fact that, “[i]n the [warrant] execution context, as elsewhere, Fourth Amendment reasonableness kicks in.” Cybernet, 954 F.3d at 168. Courts have applied this reasonableness standard to suppress evidence when the government delayed unreasonably in sifting through social media warrant returns for relevant evidence. See, e.g., United States v. Cawthorn, 2023 U.S. Dist. LEXIS 142471, 2023 WL 5163359, at *5-7 (D. Md. July 13, 2023) (finding Fourth Amendment violated when government waited two years after executing warrant to review social media account data and did not justify delay). These safeguards help ensure that, despite the large scope of information that the warrants here returned, the searches and seizures they authorized were not insufficiently particularized.

The wide-ranging nature of the sex trafficking conspiracy under investigation further mitigates any concern that the scope of the warrant was impermissibly broad. The FBI was investigating the multi-month sex trafficking of at least three underage girls by force and coercion. By the time the first warrant at issue was sought, that investigation had produced evidence that a host of gang-affiliated suspects had helped sex traffic the minors, and many more had engaged in illegal sexual activity with them. And these were not just “ordinary” gang members. The suspects were members of or otherwise affiliated with MS-13, a transnational criminal organization that “defined its primary mission as killing rivals” and that committed numerous murders across the United States. See United States v. Pérez-Vásquez, 6 F.4th 180, 187 (1st Cir. 2021). A reasonable inference from the evidence in the warrant affidavits was that the sex trafficking conspiracy was ongoing, as at least some of the suspects appeared willing to sex traffic minors under the threat of death as a matter of course so that they could fund their lifestyles and MS-13’s operations.

Moreover, the affidavit showed how the conspirators were using Facebook extensively to communicate with co-conspirators, victims, and customers in furtherance of the conspiracy. Under such circumstances, it did not violate the Fourth Amendment’s particularity requirement for law enforcement to obtain detailed Facebook user activity data on the sex trafficking suspects. See, e.g., United States v. Allen, 2018 U.S. Dist. LEXIS 60247, 2018 WL 1726349, at *2, *6 (D. Kan. Apr. 10, 2018) (holding Facebook warrant that produced 28,000 pages of records was sufficiently particularized in the context of an investigation into a complex criminal conspiracy to use a weapon of mass destruction); United States v. Daprato, 2022 U.S. Dist. LEXIS 78626, 2022 WL 1303110, at *7 (D. Me. May 2, 2022) (rejecting particularity challenge to a warrant that compelled disclosure of broad array of Facebook account data to help “reveal [a defendant’s] additional connections with the codefendants or victims”). The sheer magnitude of the sex trafficking conspiracy here justified a concomitant breadth in the scope of the warrants, particularly as the seizures they authorized were limited to evidence of the specified offenses for which probable cause existed.

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