2013 WL 7856601. at *4
(D.D.C. Oet. 31, 2()13) (Facciola, l\/l.l.) ("Geiieric and inaccurate boilerplate language will only
cause this Court to reject future § 2703(d) applications.").
III. Tlie Governmcnt’s Applieations Are Overbroad
With respect to the three Applications that do have an appropriate Attachment B_ the
government seeks to seize data that are outside the scope of its investigation and for which it has
not established probable cause. The government is investigating the distribution and possession
of child pornography Some ofthe items listed in Attachment B that it wishes to seize. such as
items l.l’ 2,7 3_8 9.9 and 10,… are appropriately within the scope ofits investigation.ll Based on
the Application, it has established probable cause for those items.
'fhe government has not. however. established probable cause for the broad seizure of
data in items 4,'2 5, l$ 6,ll 7,l5 and S,l° Witli one simple modii‘ication, these Applications would
6 1. An_\' iiiforination. including text and instant messages. relating to the transportation. ti'avel. enticement. or sexual
conduct involving a minoi".
7 2 E\ idence of user attribution showing who had dominion_ o\\nership. ctistod_v. or control ofthe dev ice at the time
the coinmunications described in this \\arraiit \\erc ereated. edited. or deleted. such logs. phonebooks. saved
usei'names and pass\\ords. documents_ and bi‘o\\ sing histoi‘_\_
8 3 Recoi'ds and things c\ idcncing the use of an_\ lnternet Protocol address to coinmunic'.ite with the victim or her
parents through e-mail or te\t. including: (a) records of lnternet Protocol addresses used: (b) records of lnternet
acti\ ity. including tire\\all logs. caches. bro\\ ser history and cookies_ bookmarked or fa\ orite \\eb pages. search
terms that the user entered into any lnternet search engine. liles uploaded and records tifuser-t_\ ped web addresses
9 9. All visual depictions ofchildreii. engaging in sexually explicit conduct. as delined in Title 18 U.S.(``.. § 2256.
and child erotica_ clothed or unclothed.
lo lO. /\n_\ and all e\ idence of passwords needed to access the user cell plione.
ll These "items" refer to the numbered entries on /\ttachiiieiit B. §§ Aflidavit at l 1.
lz 4. /\n_\ and all list ofnames. telephone iiunibers'. and addresses stored as contacts to include picturcs.
4
have avoided the overbreadth problem: seize this information only insofar as it pertains to
violations of 18 U.S.C. §§ 2252(/\)(2) and 2252/§(;1)(5)(13). However, no such liinitation
currently exists. lnstead, the government apparently seeks to seize the entirety oftliese phones,
including all coinmunications. regardless of whether they bear any relevance whatsoever to this
investigation. lfthis were not the intention then Attachment B would not begin by saying that
the government wishes to seize "[a]ll records . . . including . . by using the term "incltiding,"
the Applications make the seizure list broader than the categories that are specifically listed.
at l1.l7 That is precisely the type of"geiieral, exploratory rummaging in a person’s
belongings" that the Fourth Amendment prohibits. Coolidge v. N.H.,
403 U.S. 443, 467 (1971).
lfthe government intends to resubmit these Applications, it must be more discriminating
when determining what it wishes to seize, and it must make clear that it intends to seize only the
records and content that are enumerated and relevant to its present investigation. ln their present
state, however. the Applications are impermissibly lacking in specificity as to what exactly will
be seized and are therefore overbroad. lx
IV. The Present Applications Risk G0veriiment Overseizure
This matter presents the Court with a Fourth Amcndmcnt oddit_\i'. Pursuant to a search and
seizure warrant ofthe Solomons_ l\/laryland hotel room_ thc government seized the cell phones
ll 5. Any and all names of persons [sic] has contacted i'eccntl_\ contacted Isic] through calls and text messages
m 6. lmages. pictures. pliotograplts sent or received by usci'.
l§ 7. The content ofany and all text messages sent or received by user.
l(° 8. 'l``he content of any and all voice mail messages
ll Although this Court generally distinguishes between "reeords" and "content." as in
18 U.S.C. § 2703. it is evident
that these Applications include both records and content under the term "records."
lg Case law on this issue is primarily concerned with an overbroad .s'ecu'ch. S_eg United Statcs v. Richards.
659 F.3d
527.5'-11-42 (J``th Cir. 201 l) ("['fhe warrantl \\ as not unconstitutionally overbroad The scope of the warrant was
restricted to a search for evidence ofchild pornography crimes and did not permit a free-ranging search."); § all
United States v. Burgess. 576 l``~.3d 1078. 1091 (10th (``ir. 200‘)) ("l\)|ui' case la\\ requires that warrants for computer
searches must 'af``liriii'ati\ ely liinit the search to e\ idence for specific federal crimes or specific t_\ pes ofmaterial "``).
Hei'e. the governinciit \\ arits to .ie/:e an inordinate ttmouitt of iiiatci‘ial. 'l``he concern regarding sewing is the same as
\\ith searching in Ricliai‘ds and Huri»ess beeausc. of``course. in order for the governinciit to .s'e/:e some subset ofdata
froin these cell phoncs. it must first .rezz/‘ch the plioites.
that are the focus ofthe present Applications. w § Affidavit at 8. As a result, those phones are
clearly already "seized" \vithin the meaning oftlie Fourth Amendment. §§ Brower v. Cnty. of
l_nyQ, 489 U.S. 593, 596 (1989). Now, though, the government seeks a second search and seizure
warrant to examine the contents ofthese phones /\ssuming that the "search" does not occur until
the contents ofthe phone are examined_ Orin l\'err. Searehes and Seizures iii a Digital World,
1
19 Harv. L. Rev. 551, 551 (2005). the governineiit``s Application-which specifically asks to
seize the data that is in reality. already seized-is operating tinder the implied assumption that
the contents are not currently scized.
The best way of resolving this constitutional oddity is by treating these Applications as
requesting additional warrants under United States v. 'famura, 694 F.Zd 591 (9th Cir. 1982) and
its progeny, including United States v. Hill. 459 F.Sd 966 (9th Cir. 2006) and United States v.
Comprehensive Drug Testiiig_ lnc..
621 F.3d 1162_ 1180 (9th Cir. 2010). ln Tamura, the Ninth
Circuit addressed what should occur when "documents are so intermingled that they cannot
feasibly be sorted on site." Tamura. 694 F.Zd at 595. 'l``he court "suggest[ed] that the Government
and law enforcement officials generally can avoid violating fourth amendment rights by sealing
and holding the documents pending approval by a magistrate ofa further search." l_d_. at 595-96.
Although Tamura was primarily concerned with the removal of computer storage devices away
from the site where the initial search and seizure occurred, the general overriding principal of
these cases is that_ ifthe government wishes to perform a "vvltolesale seizure_" it must "justify it
to the inagistrate." Sle §ij_ 459 F.Sd at 976-77.
The bottom line is this: even though the cell pliones are currently seized by the
government, the government must still explain to the Court what the basis for probable cause is
lg Although the Applications mention that warrant. this Court has not seen a copy ofit and it is not part ofthe record
in this mattci'.
to search for each thing it intends to seize. and it must explain how it will deal with the issue of
intermingled documents. Because the government has come to ask for a search and seizure
warrant, it can only address these issues by explaining in a revised application its intended search
protocol. The l\linth Circuit has expressed repeated concern that some sort of search protocol
may be needed ifthere is concern about the governinent "overseizing data and then using the
process ofidentifying and segregating seizable electronic data ``to bring constitutionally
protected data . . . into plain vievv."`` United States v. Schesso.
730 F.3d 1040, 1047 (9th Cir.
2013) (eiting Comprehensive Drug Testiiig. 621 l’.3d at 1047). That same concern is what
aniinates the Court``s present ruling.
The Court is tinaware ofany appellate decision that reqtti're.s' a search protocol before a
warrant may be issued. §e§, §§ l_l_M. 459 l``~.3d at 978 ("/\s we have noted. we look favorably
upon the inclusion ofa search protocol; but its absence is not fatal."). And many courts have
expressed legitiinate concerns about hainstringing a valid criminal investigation by binding the
governinent to a strict search protocol ex ctnte. §_e_, Burgess, 576 F.3d at 1094. Certainly,
something like searching only for JPEGs or the term "sex" would be abstird. But the Court will
require the government to give some indication of how the search will proceed. Will all ofthese
devices be imaged‘? For how long will these images be stored? Will a dedicated computer
forensics team perform the search based on specific criteria front the investigating officers of
what they are looking for, or will the investigating officers be directly involved? What
procedures will be used to avoid viewing material that is not within the scope ofthe warrant? 1f
the government discovers unrelated incriminating cvidence, \vill it return for a separate search
and seizure \varrarit? §_e_e g at 1095 (the searching officer "elosed the gallery view when he
observed a possible criminal violation outside the scope ofthe warrant``s search authorization and
did not renew the search until he obtained a new warrant."). These types of issues must be
addressed.
ln the context ofan e-mail search. this Court recently determined that the third-party
provider must perform the search unless the government can suggest a sufficient alternative. §
ln the l\/latter ofthe Seareh of`` Inforination /\ssociated with [REDAC'l``ElQ@l\/lac.coin That is
Stored at Premises Controlled bv Apple_ lne., l\/Iag. Case No. 14-228 (D.D.C. l\/Iar. 7, 2014).20
Unless the government follows judge Alex l'\'ozinski``s suggestion that "[s]egregatioit and
redaction of electronic data must be done either by specialized personnel or an independent third
party," that type of option is not available here. Comprehensive Drug Testing, 62| F.$d at 1180
(Kozinsl2013 WL 7856600. at *7 (D.D.C. Nov. 26, 2013)
(Facciola. l\/I.J.).
VI. C0nelusi0n
For the reasons stated above, it is hereby ORDERED that the government’s Applieations
are DENIED without prejudice _ _ _
Digitally signed by john l\/l.
Facciola
DN: c=US,
email=john_m._facciola@dcd.u
scourts.gov, o=United States
District Court for the District of
Co|umbia, cn=lohn l\/\. Facciola
Date: 20l4.03.ll l6:52:l 7
-04'00'
JOHN l\/I. FACCIOLA
UNITED STATES l\/IAGISTRATE JUDGE
SO ORDERED.