United States v. in the Matter of the Search Associated With Rwgann

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN THE MATTER OF THE SEARCH OF
INFORMATION ASSOCIATED WITH
[REDACTED]@MAC.COM Magistrate Case. No. 14-228 (JMF)
THAT IS STORED AT PREMISES
CONTROLLED BY APPLE, INC.
SECOND MEMORANDUM OPINION AND ORDER
Pending before the Court is a Renewed Application for a search and seizure warrant
pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(a), (b) and
(c) to disclose certain records and contents of electronic communications relating to an Apple e-
mail address. 1 See Affidavit in Support of an Application for a Search Warrant [#5-1] (sealed) at
1 (hereinafter Affidavit). In a previous Memorandum Opinion and Order, 2 this Court denied the
government’s original application for a search and seizure warrant for the same e-mail address
without prejudice both because it failed to clearly specify which e-mails it sought to seize and
because it sought authorization to seize e-mails for which it had not established probable cause to
seize. In re Search of Apple E-mail, 2014 WL 945563, at *3, *5. The government’s Renewed
Application does not address these concerns and ignores the substance of this Court’s previous
rulings. The government persists in its attempt to seize an entire e-mail account and search
through all of it. For the reasons stated below, the government’s Renewed Application for a
search and seizure warrant will, therefore, be denied.
1
All references to the United States Code are to the electronic versions that appear in Westlaw or Lexis.
2
See In the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at Premises
Controlled by Apple, Inc., Mag. Case No. 14-228, 2014 WL 945563 (D.D.C. Mar. 7, 2014) (hereinafter In re Search
of Apple E-mail).
I. Background
This is the government’s second attempt to obtain a search and seizure warrant for a
specific Apple e-mail address as part of its investigation of a possible violation of 41 U.S.C.
§ 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy) involving a
defense contractor. Affidavit at 10. For purposes of this opinion, the details of the
investigation—which remain under seal on the Court’s docket—are irrelevant. 3
In response to this Court’s previous opinion in In re Search of Apple E-mail, the
government has deviated from the standard format used to search e-mail accounts that is found in
the Department of Justice’s manual Searching and Seizing Computers and Obtaining Electronic
Evidence in Criminal Investigations, Department of Justice Criminal Division Computer Crimes
and Intellectual Property Section, 255-262. 4 See In re Search of Apple E-mail, 2014 WL 945563,
at *7 (“To be clear: the government must stop blindly relying on the language provided by the
Department of Justice's Searching and Seizing Computers and Obtaining Electronic Evidence in
Criminal Investigations manual. By doing so, it is only submitting unconstitutional warrant
applications.”). In an “Attachment A,” titled “Place to Be Searched,” the government specifies
the location of Apple, Inc. and indicates that the “warrant applies to information associated with
the e-mail account [redacted]@mac.com dating from [January], 2014, to the present.” 5 Affidavit
at 12. An “Attachment B,” titled “Particular things to be seized by the government,” is as
follows:
3
This opinion addresses an investigatory tool related to an ongoing investigation, and the underlying documents
must remain sealed for the time being. However, this opinion is intended to be—and shall be—made public, as it
discusses the investigation in a sufficiently vague manner such as to avoid compromising the ongoing criminal
investigation.
4
Available at http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf (last visited Mar. 29, 2014).
5
The government’s original application sought e-mails and records from December, 2013, until the present. See In
re Search of Apple E-mail, 2014 WL 945563, at *1.
2
ATTACHMENT B
Particular things to be seized by the government
All emails, including email content, attachments, source and destination
addresses, and time and date information, that constitute evidence and
instrumentalities of violations of 41 U.S.C. § 8702 (Solicitation and Receipt of
Kickbacks) and 18 U.S.C. § 371 (Conspiracy), dated between [January], 2014, to
the present, including emails referring or relating to a government investigation
involving any or all of the following: [Redacted list of names of companies and
individuals in the form of “John Smith, John Smith, Inc., any current or former
John Smith employees, etc.”].
Id. at 13.
Finally, the government has included an “Attachment C,” titled “Procedures to facilitate
execution of the warrant”:
ATTACHMENT C
Procedures to facilitate execution of the warrant
I. Information to be disclosed by Apple (the “Provider”)
To the extent that the information described in Attachment A is within the
possession, custody, or control of the Provider, including any emails that have
been deleted but are still available to the Provider, or have been preserved
pursuant to a request made under 18 U.S.C. § 2703(f) [in January], 2014, the
Provider is required to disclose the following information to the government for
the account listed in Attachment A: all emails, including attachments, associated
with the account, dating from [January], 2014, to the present, and including stored
or preserved copies of emails sent to and from the account, draft emails, the
source and destination addresses associated with each email, the date and time at
which each email was sent, and the size and length of each email.
Apple shall deliver the information set forth above via United States mail,
courier, or email to: [The Department of Justice].
II. Government procedures for warrant execution
The United States government will conduct a search of the emails
produced by the Provider and determine which are within the scope of the
information to be seized specified in Attachment B. Those that are within the
scope of Attachment B may be copied and retained by the United States.
Law enforcement personnel will then seal any information from Apple
that does not fall within the scope of Attachment B and will not further review the
information absent an order of the Court.
3
Affidavit at 14-15. Thus, the government requests that Apple provide all e-mails from a certain
date in January, 2014, so that the government may search them for evidence of specific crimes
and keep any non-relevant e-mails under seal until further order of a court.
II. Analysis
This is the third Memorandum Opinion from this Court regarding overbroad search and
seizure warrants for data held by a third party provider of an electronic communications service.
In September, the Court substantially modified a search warrant for the Facebook account of
Navy Yard shooter Aaron Alexis to narrow its scope and prevent the government from retaining
information that was irrelevant to its investigation. See In the Matter of the Search of
Information Associated with the Facebook Account Identified by the Username Aaron. Alexis
That Is Stored at Premises Controlled by Facebook, Inc., 2013 WL 7856600, at *8 (D.D.C. Nov.
26, 2013) (Facciola, M.J.) (hereinafter Facebook Opinion). In that Opinion, the Court implored
the government to “seriously consider how to minimize the amount of information that its search
warrant applications seek to be disclosed” because, as it stood, the government was requesting
authorization to seize data for which it had not established probable cause. Id. at *8. In so doing,
this Court recommended, inter alia, “[a]sking the electronic communications service provider to
provide specific limited information such as emails or faxes containing certain key words or
emails sent to/from certain recipients.” Id. (citing In re Applications for Search Warrants for
Case Nos. 12–MJ–8119–DJW and Information Associated with 12–MJ–9191–DJW Target
Email Address, Nos. 12–MJ–8119, 12–MJ–8191, 2012 WL 4383917, at *10 (D.Ks. 2012)
(hereinafter In re Search of Target Email Address)); see also Facebook Opinion at 2013 WL
7856600, at *8 (listing five measures the government could take to bring its warrant applications
4
in line with the requirements of the Fourth Amendment). Unfortunately, over the following four
months, the government did not take any steps to modify their search warrant applications.
This Court’s previous Memorandum Opinion in this matter was driven by two principal
concerns. 6 First, the government’s original application sought to seize an entire e-mail account
even though it had only established probable cause for some of the e-mails. See In re Search of
Apple E-mail, 2014 WL 945563, at *5. By doing so, the government asked this Court to issue a
“general warrant that would allow a ‘general, exploratory rummaging in a person's
belongings’—in this case an individual's e-mail account.” Id. (citing Coolidge v. N.H., 403 U.S.
443, 467 (1971)). Second, the government failed to explain what would occur with data that
were seized but were outside the scope of the warrant application (and for which there was
necessarily no probable cause to seize in the first place). In re Search of Apple E-mail, 2014 WL
945563, at *6. As a result, this Court was explicit that, “in light of the government’s repeated
submission of overly broad warrants that violate the Fourth Amendment, this Court can see no
reasonable alternative other than to require the provider of an electronic communications service
to perform the searches.” Id.
The government’s modifications in its Renewed Application fail to address the Court’s
concerns. In fact, the government has ignored the substance of the Court’s warnings that its e-
mail search warrant applications violate the Fourth Amendment. Although there are some
cosmetic differences between the original application and the Renewed Application, the bottom
line is that the government still gets all e-mails—regardless of their relevance to its
investigation—and keeps them indefinitely. See Affidavit at 14-15. This is no different than what
the government originally requested, and this Court still will not grant it.
6
There were also serious drafting errors that raised questions about what the government actually intended to seize.
These have now been corrected in the revised Attachment B. See In re Search of Apple E-mail, 2014 WL 945563, at
*2-3.
5
A. The Government Still Seeks an Unconstitutional General Warrant
1. The Fourth Amendment Prohibits the Type of Warrant the Government
Seeks
The Supreme Court has recognized two constitutional protections served by the warrant
requirement of the Fourth Amendment. “First, the magistrate's scrutiny is intended to eliminate
altogether searches not based on probable cause. The premise here is that any intrusion in the
way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior
determination of necessity.” Coolidge, 403 U.S. at 467. Thus, it is this Court's duty to reject any
applications for search warrants where the standard of probable cause has not been met. Second,
“those searches deemed necessary should be as limited as possible. Here, the specific evil is the
‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of
a general, exploratory rummaging in a person's belongings.” Id. To follow the dictates of the
Fourth Amendment and to avoid issuing a general warrant, a court must be careful to ensure that
probable cause exists to seize each item specified in the warrant application.
As this Court has previously noted, any e-mails that are turned over to the government
are unquestionably “seized” within the meaning of the Fourth Amendment. See In re Search of
Apple E-mail, 2014 WL 945563, at *5 (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989)
(noting that a “seizure” occurs when there is “an intentional acquisition of physical control”).
Although the Supreme Court has never specifically defined what constitutes a seizure in the
electronic world, it has stated that, with regard to physical items, a “‘seizure’ of property only
occurs when there is some meaningful interference with an individual’s possessory interests in
that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). In this Court’s view, a
seizure of property occurs when e-mails are copied and taken by the government without the
owner’s consent because an individual’s “possessory interest [in the e-mails] extends to both the
6
original and any copies made from it.” Orin Kerr, Fourth Amendment Seizures of Computer
Data, 119 Yale L.J. 700, 703 (2010). After all, when a copy is made, “the person loses exclusive
rights to the data,” id., and it is at that time that the owner’s property interest in the e-mail is
affected. This reality has been assumed, if not stated outright, in the numerous cases that
acknowledge that e-mails turned over to the government by an electronic communications
service provider are “seized.” See, e.g., In re Search of Target Email Address, 2012 WL
4383917, at *9; United States v. Taylor, 764 F. Supp. 2d 230, 237 (D.Me. 2011); United States v.
Bickle, No. 10–CR–00565, 2011 WL 3798225, at *22 (D.Nev. July 21, 2011); United States v.
Bowen, 689 F. Supp. 2d 675, 684 (S.D.N.Y. 2010). 7
To conclude otherwise would yield unsatisfactory results. 8 First, if copying were not
considered “seizing,” that would suggest the irrelevance of the Fourth Amendment to that act:
If copying data is not a seizure, then copying cannot logically be regarded as a
search and it does not violate an expectation of privacy. It is possible to copy files
without examining the files. Therefore, if copying is not a seizure, it is outside the
scope of the Fourth Amendment's reasonableness requirements and is an activity
which can be conducted at will, requiring neither the justification of a warrant nor
an exception to the warrant requirement. This is not a satisfactory result. Copying
has an effect upon the “ownership” rights of the party whose information is
copied.
Susan Brenner and Barbara Frederiksen, Computer Searches and Seizures: Some Unresolved
Issues, 8 Mich. Telecomm. & Tech. L. Rev. 39, 113 (2002). Thus, this Court would have to
believe that, if the act of copying e-mail is not a seizure, then the Fourth Amendment is
powerless to prevent the wholesale copying of every single e-mail ever sent, a result that no
court could ever reasonably embrace. It would also render hollow the Sixth Circuit’s holding in
7
On the other hand, one court has held that copying e-mail does not meaningfully interfere with a possessory
interest “due to the nature of electronic information, which can be accessed from multiple locations, by multiple
people, simultaneously.” In re Application of the United States of America for a Search Warrant for Contents of
Electronic Mail and for an Order Directing a Provider of Electronic Communication Services to not Disclose the
Existence of the Search Warrant, 665 F. Supp. 2d. 1210, 1222 (D.Or. 2009).
8
For a discussion of the relevant cases, which do not suggest a consistent approach, see Fourth Amendment
Seizures of Computer Data, 119 Yale L.J. at 706-09.
7
United States v. Warshak, 631 F.3d 266, 285-88 (2010), that there is a reasonable expectation of
privacy with respect to one’s e-mails—even though those e-mails were copied by an electronic
communications service provider and given to the government. Id. at 283.
Second, that approach suggests that a seizure could only occur if the actual hard drive
that contains the target e-mail account, which is presumably in a server farm operated by Apple,
is physically taken by the government. This ignores the reality that “[h]ardware is increasingly
fungible” and that what really matters—and what the owner of the e-mails actually has a
possessory interest in—“is the data.” Fourth Amendment Seizures of Computer Data, 119 Yale
L.J. at 712. A focus on hardware instead of data, in determining when a seizure occurs, would
therefore miss the mark and ignore fundamental realities about how computers are actually used.
See In re Southeastern Equipment Co. Search Warrant, 746 F. Supp. 1563, 1576 (S.D.Ga. 1990)
(“As the LeClair Court pointed out, it is the information itself, not the paper and ink or tape
recorder or other copying utensil, that is actually seized.”) (citing LeClair v. Hart, 800 F.2d 692,
696 n.5 (7th Cir. 1986)).
Furthermore, the government itself characterizes the act of copying e-mails as a seizure
by noting that it will “seize” some of the copied e-mails after the search is complete. See
Affidavit at 13-15. It is, after all, seeking a “search and seizure warrant.” See Fed. R. Crim. P.
41. Thus, even though the e-mails are only being copied by Apple (with other copies remaining
on Apple’s servers), a seizure is occurring. Because there is no principled distinction that
suggests that copying data once is not a seizure but copying data twice is a seizure, it follows that
the e-mails are seized the first time they are copied by Apple and given to the government. Any
other position is unsatisfactory because the property interest in e-mails certainly suffers
8
“meaningful interference” when a third party has unauthorized access to those e-mails. 9 Thus, e-
mails are seized when Apple gives them to the government just as surely as a physical letter is if
it is taken by the postal service and given to the government. See Fourth Amendment Seizures of
Computer Data, 119 Yale L.J. at 722-23.
The problem with the government’s Renewed Application is not that it fails to specify
with particularity what it intends to seize—and not that it suggests a seizure will not occur—but
that it will actually seize large quantities of e-mails for which it has not established probable
cause and which are outside the scope of Attachment B. The government asks Apple “to disclose
the following information to the government for the account listed in Attachment A: all emails,
including attachments, associated with the account, dating from [January], 2014, to the present . .
.” Affidavit at 14. This Court has an affirmative obligation to “prevent[] the seizure of one thing
under a warrant describing another.” See Andresen v. Maryland, 427 U.S. 463, 479 (1976)
(citing Stanford v. Texas, 379 U.S. 476, 485 (1965)). Here, the warrant describes only certain e-
mails that are to be seized—and the government has only established probable cause for those e-
mails. Yet it seeks to seize all e-mails by having them “disclosed” by Apple. This is
unconstitutional because “[t]he government simply has not shown probable cause to search the
contents of all emails ever sent to or from the account.” See In re Search of Target Email
Address, 2012 WL 4383917, at *9. As Judge David J. Waxse wisely analogized, if this were the
physical world, it would be akin to “a warrant asking the post office to provide copies of all mail
ever sent by or delivered to a certain address so that the government can open and read all the
9
One other absurd result bears mentioning: if copying e-mails did not interfere with the owner’s possessory
interests, then a cause of action for trespass to chattels would never accrue if e-mails were copied, again suggesting
that private communications would be left essentially unprotected by the law. However, a cause of action for
trespass to chattels arises when data is copied without authorization. See Oyster Software, Inc. v. Forms Processing,
Inc., 2001 WL 1736382, at *13 (N.D.Ca. 2001) (holding that “copying . . . metatags” gives rise to a cause of action
for trespass).
9
mail to find out whether it constitutes fruits, evidence or instrumentality of a crime. The Fourth
Amendment would not allow such a warrant.” Id. This Court agrees.
2. The Two-Step Procedure Is a Narrow Exception Due to Practical
Considerations That Is Inapplicable Here
Nevertheless, there is a narrow exception that authorizes an otherwise unconstitutionally
broad seizure if the only practical way to perform a search is to seize an entire repository, such as
a file cabinet or computer, and take it offsite for a later search. 10 This is, in essence, the
procedure outlined in United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982), where the
Ninth Circuit deemed it acceptable to take a large quantity of documents offsite if the
government explained that need to the magistrate. This two-step procedure—seize a large
quantity of data and perform the specific search later at an offsite location—was later codified in
Rule 41. See Fed. R. Crim. P. 41(e)(2)(B).
There is no question that the two-step procedure is constitutional under certain
circumstances. See Facebook Opinion, 2013 WL 7856600, at *6 (citing cases holding that the
two-step process under Rule 41 does not violate the Fourth Amendment). In fact, this Court has
recently approved use of the two-step procedure in a series of opinions addressing the search of
cell phones and hard drives—but only if the government provides an adequate search protocol
explaining how it will perform the search and ensure that it is only searching sectors or blocks of
the drives that are most likely to contain the data for which there is probable cause. 11 In those
instances, the search protocol must “explain how [the government] is going to conduct this
10
The question of what must happen with data that is seized and not within the scope of the warrant is discussed
infra.
11
See In the Matter of the Search of Apple iPhone, IMEI 013888003738427, Mag. Case No. 14-278, 2014 WL
1239702, at *6-7 (D.D.C. Mar. 26, 2014) (Facciola, M.J.) (hereinafter In re Apple iPhone); In the Matter of the
Search of Odys Loox Plus Tablet, Serial Number 4707213703415, In Custody of United States Postal Inspection
Service, 1400 New York Ave NW, Washington, DC, Mag. Case No. 14–265, 2014 WL 1063996, at *5-6 (D.D.C.
Mar. 20, 2014) (Facciola, M.J.); In the Matter of the Search of Black iPhone 4, S/N Not Available, Mag. Case No.
14–235, 2014 WL 1045812, at *4 (D.D.C. Mar. 11, 2014) (Facciola, M.J.) (hereinafter In re Search of Black
iPhone).
10
search to minimize the risk that files outside the scope of the warrant will be discovered.” See In
re Apple iPhone, 2014 WL 1239702, at *7.
The problem here, as previously pointed out by this Court, is that the government is
“abusing the two-step procedure under Rule 41” by requiring Apple to disclose the entire
contents of an e-mail account. See In re Search of Apple E-mail, 2014 WL 945563, at *5. A
seizure unquestionably occurs once data is turned over from Apple to the government. See supra.
The government cannot pretend that the seizure only occurs after it has searched and separated
the relevant e-mails from the irrelevant ones. And the two-step Rule 41 process, which has
essentially created a narrow exception to the general prohibition against seizing data for which
there is no probable cause, is permissible only because there is no alternative that would allow
the government to access the data for which it does have probable cause. See In re Search of
Black iPhone, 2014 WL 1045812, at *4. The Court must emphasize that the two-step procedure
is a narrow exception that requires an affirmative showing of need in the warrant application.
The Renewed Application, however, fails to provide any explanation for why the two-step
procedure is necessary.
3. By Requiring Apple to Perform the Search, the Court Avoids Issuing a
General Warrant
Unlike a search of a hard drive or cell phone, there is an alternative that, in accordance
with the Fourth Amendment, prevents the government from seizing large quantities of data for
which it has not established probable cause: the electronic communication service provider, in
this case Apple, can perform the search at the government’s request and turn over any relevant
data that it discovers. Otherwise, if the Court were to grant the Renewed Application as it is, the
government would immediately seize a vast quantity of e-mails to which it is not entitled; in so
doing, this Court would issue a general warrant, which it cannot do.
11
The Court fully understands that, in requiring a third party electronic communications
service provider to perform the search that the government would otherwise perform, it is going
a step further than—to its knowledge—any other court has. See Taylor, 764 F. Supp. 2d at 237
(the “Fourth Amendment does not require the government to delegate a prescreening function to
the internet service provider or to ascertain which e-mails are relevant before copies are obtained
from the internet service provider for subsequent searching.”); accord Bickle, 2011 WL
3798225, at *20 (but noting that “a filter process was mandated by Judge Foley to sort or filter
privileged emails from non-privileged emails.”); Bowen, 689 F. Supp. 2d at 682. But this Court
reaches this conclusion out of exasperation that the government has, despite repeated warnings,
refused to determine an alternative that does not involve the wholesale seizure of vast amounts of
e-mails and other data protected by the Fourth Amendment to which it has no right. Unless the
government can suggest an appropriate alternative, the Court can only conclude that the Fourth
Amendment does require that the provider perform the search because nothing else will
eliminate the present certainty that the government will unconstitutionally seize data for which it
has not established probable cause to seize.
Cases involving searches and seizures of evidence held by third parties, such as Zurcher
v. Stanford Daily, 436 U.S. 547, 559 (1978), do not suggest that this Court must take a different
approach. In Zurcher, the Supreme Court held that a search and seizure warrant was the
appropriate vehicle by which to obtain photographs held by a student newspaper that was itself
not suspected of any wrongdoing. Id. at 551-52. That case addressed whether property held by a
third party (not a suspect) could be searched and seized if it was nevertheless fruits,
instrumentalities, or evidence of a crime. Id. at 559. 12 This Court does not disagree, and there is
12
As the D.C. Circuit has held, “the tacit basis of the [Zurcher] decision” was that “the First Amendment offers no
procedural or substantive protections against good faith criminal investigative activity beyond that afforded by the
12
no question that Apple, as the entity holding the target e-mails, may be served with a search and
seizure warrant to turn over relevant e-mails.
Instead, there is a different question before this Court: can this Court order Apple to turn
over e-mails that are necessarily outside the scope of the warrant and thus irrelevant? The answer
is no. To hold otherwise would suggest that the Zurcher Court would have approved a search and
seizure whereby the government entered the newspaper’s office, copied every photograph, took
them back to the station, and then searched through them to determine which ones were relevant
to the investigation (and, as written, the Renewed Application would then have the police keep
the non-relevant photographs indefinitely). Such a procedure would never be sanctioned because
it would be precisely the type of “general, exploratory rummaging in a person’s belongings” that
the Fourth Amendment prohibits. Coolidge, 403 U.S. at 467. Given that third parties are
permitted to assist in the execution of search warrants, see In re Search Warrant, 71 A.3d 1158,
1180 (Vt. 2012) (citing cases), it is certainly appropriate to have Apple perform the search when
Apple’s involvement is necessary to prevent a violation of the Fourth Amendment and limit the
e-mails seized by the government.
B. The Government Has Failed to Even Suggest an Alternative to Having the E-
mail Provider Perform the Search
Nothing in the Renewed Application even attempts to address the Court’s rulings in In re
Search of Apple E-mail, and the government makes no effort whatsoever to take advantage of
Apple’s technical expertise to perform the search in a way that will protect the target’s Fourth
Amendment rights. Instead, all the government has done is simply move the request that Apple
“disclose . . . all emails, including attachments, associated with the account” from Attachment B
Fourth and Fifth Amendments.” Reporters Comm. For Freedom of the Press v. American Tel. & Tel. Co., 593 F.2d
1030, 1055 (D.C. Cir. 1978). By contrast, the Court’s ruling in this matter is based solely on the requirement of the
Fourth Amendment that probable cause must exist to seize the materials specified in a warrant application.
13
to Attachment C. See Affidavit at 3. This obviously accomplishes nothing, and it indicates that
the government is unwilling—for whatever reason—to give up its policy of seizing large
quantities of e-mails and other Fourth Amendment protected data even after this Court has
repeatedly warned it against doing so.
There may be circumstances in which it is not possible for the service provider to do the
search. In such instances, in accordance with the principle of Tamura, practical considerations
would necessitate that the government perform the search even if it means seizing—on a
temporary basis—data for which it has not established probable cause. But that has not occurred
here. Mere convenience does not allow the government to violate the Fourth Amendment and
seize data wholesale. 13
Here, the government has not even hinted that Apple cannot perform the search, let alone
provided the Court with the evidence and sworn statements necessary to justify a wholesale
seizure of the target Apple e-mail account. Instead, this Court has been presented with the same
defective and unconstitutional request for a search and seizure warrant. This Court cannot issue
it.
C. The Government Cannot Keep Data it Knows Is Outside the Scope of the
Warrant
In its Renewed Application, the government first asks this Court to order Apple to turn
over data for which the government knows it has not established probable cause; after it
performs a search, it then wants to “seal any information from Apple that does not fall within the
scope of Attachment B and [] not further review the information absent an order of the Court.”
13
Even if the government were to identify practical considerations that make a search by a service provider
impossible, it would still need to provide this Court with an adequate search protocol so that the Court can be
assured that the government is “limit[ing] the possibility that locations containing data outside the scope of the
warrant will be searched” in line with the particularity requirement of the Fourth Amendment. In re Apple iPhone,
2014 WL 1239702, at *6. The Renewed Application provides no search protocol whatsoever.
14
Affidavit at 15. Such a request is inconceivable—and unacceptable—given the Court’s repeated
statements on this specific issue. In September and December 2013, 14 the Court modified
approximately twenty warrants to specify that any data not within the scope of the warrant would
be returned or, if copies, destroyed within a reasonable period of time. See Memorandum
Opinion, 2014 WL 945563 at *3, *7. Moreover, through no less than five separate published
opinions—four of them in the past month—this Court has made clear that any position short of
“[a]ny information discovered on the Device to be seized which falls outside of the scope of this
warrant will be returned or, if copied, destroyed within a reasonably prompt amount of time after
the information is identified” is unacceptable. See In re Search of Apple iPhone, 2014 WL
1239702, at *5.
The government’s apparent source for suggesting that it will “seal” the irrelevant e-mails
until this Court orders otherwise is Tamura, where the Ninth Circuit said that “[g]overnment and
law enforcement officials generally can avoid violating fourth amendment rights by sealing and
holding the documents pending approval by a magistrate of a further search . . .” 694 F.2d at 595.
Taken out of context, this quote appears to authorize the government’s suggestion in its Renewed
Application—but it does not. Tamura authorized the sealing pending further court order only
“[i]n the comparatively rare instances where documents are so intermingled that they cannot
feasibly be sorted on site.” Id. That is not the issue here. Tamura does, however, serve as a useful
reminder that it is illegal for the government to “refus[e] to return the seized documents not
described in the warrant . . .” Id. at 596.
Here, the government implies that it will keep data indefinitely that it knows is outside
the scope of the warrant. To return to the example from Zurcher, the government’s position is
akin to indefinitely keeping all copies of a newspaper’s photographs merely because one or two
14
This Court has a monthly criminal rotation once every three months.
15
may show evidence of a crime. For the sixth time, this Court must be clear: if the government
seizes data it knows is outside the scope of the warrant, it must either destroy the data or return
it. It cannot simply keep it. 15
III. Conclusion
The government did not appeal the Court’s ruling in In re Search of Apple E-mail, but it
has all but ignored that ruling and merely engaged in cosmetic modifications by moving some
unconstitutional language from Attachment B to Attachment C. The end result is, of course, no
different. The government wants to seize the target’s entire e-mail account, search through it for
relevant data, and then keep indefinitely the irrelevant data that is outside the scope of the
warrant. There is no question that the Renewed Application violates the Fourth Amendment, and
this Court cannot issue it.
It is, therefore, hereby ORDERED that the government’s Application is DENIED.
SO ORDERED.
15
The exception to this admonishment is for evidence that falls within the plain view exception of the Fourth
Amendment. See Horton v. California, 496 U.S. 128, 133-34 (1990). The potential for abuse of the plain view
exception with respect to electronic data is great and has generated a great deal of discussion. For at least the last
nine years, Professor Orin Kerr has advocated abolishing the plain view exception for digital searches. See Orin
Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 582-83 (2005). Judge Alex Kozinski has
suggested that magistrate judges should “insist that the government waive reliance upon the plain view doctrine in
digital evidence cases.” United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1180 (9th Cir. 2010)
(Kozinski, J., concurring). However, the Vermont Supreme Court, in one of the few appellate opinions to carefully
address the issue of ex ante warrant restrictions, has held that a magistrate has no authority to “alter what legal
principles will or will not apply in a particular case.” In re Search Warrant, 71 A.3d at 1174. There is another
problem with relying on a waiver of the plain view doctrine to cure a problem of overseizure: the government will
still have the data and, even if it does not directly use it as evidence for a criminal prosecution, it may use it for other
purposes. In other words, this creates the problem that the data may be put into a larger database that would be ripe
for abuse. Even if outright abuse does not occur, there is always the risk of troubling uses such as “parallel
construction,” where illegal or secret criminal investigations are recreated in a manner that is seemingly consistent
with the Constitution without informing the accused or the court. See Hanni Fakhoury, DEA and NSA Team Up to
Share Intelligence, Leading to Secret Use of Surveillance in Ordinary Investigations, Electronic Frontier
Foundation, available at https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering (last
visited Mar. 30, 2014). In light of this, the more prudent course of action is to require the government to destroy any
data that it knows is outside the scope of the warrant.
16
Digitally signed by John M.
Facciola
DN: c=US,
email=john_m._facciola@dcd.u
scourts.gov, o=United States
District Court for the District of
Columbia, cn=John M. Facciola
Date: 2014.04.07 08:48:05
-04'00'
___________________________________
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
17