Today, Magistrate Judge John Facciola for the United States District Court for the District of Columbia denied the government’s request for a warrant to seize an entire email account, search it, and disclose certain emails and contents of communications discovered therein. This was the government’s third application for a warrant in connection with this email account although it has not yet provided the specific address or owner of the account it wishes to seize. Rather, the government states that it is pursuing the account in connection with its investigation into a possible solicitation and receipt of kickbacks scandal “involving a defense contractor.”
The Court denied the government’s second application for failure to disclose with specificity which emails it would seize and, moreover, its failure to establish the probable cause to do so. In denying the government’s third attempt, the Court stated that it failed “to address these concerns and ignore[d] the substance of th[e] Court’s prior rulings.”
One of the prior rulings to which the Court refers is that rendered in the application for a warrant to search and seize the Facebook account of Navy Yard shooter Aaron Alexis. There the Court considered the proper scope of the warrant and suggested that the government permit the service provider to conduct the search under the guidance of key terms provided by the government. The service provider would then be required to turn over information it discovered that was relevant to the government’s request. This, the Court explained in that case, would assist the government in “minimize[ing] the amount of information that its search warrant applications seek to be disclosed[.]”
Even in response to the government’s second request to seize the Apple email, the Court ultimately could “see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches” (emphasis added). However, perhaps out of concern for revealing too much about the nature of an investigation, “the government did not take any steps to modify their search warrant applications” upon submission of the third application in the Apple email case.
Upon this foundation, the Court explained its rationale for denying the government’s warrant request yet again.
First, the Court established that the government’s desired actions constituted a “seizure” for purposes of the Fourth Amendment.
Although the Supreme Court has never specifically defined what constitutes a seizure in the electronic world, . . . [i]n 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 original and any copies made from it.’
(Note that the Court is quoting Orin Kerr’s publication, “Fourth Amendment Seizures of Computer Data,” published in the Yale Law Journal.)
Because the government sought to “seize” the emails, yet it “fail[ed] to specify with particularity what it intend[ed] to seize,” the government’s application, in the Court’s view, failed.
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.
Even taking into consideration that a two-step procedure has been codified in Federal Rule of Criminal Procedure 41(e)(2)(B) and operates as a limited exception to otherwise unconstitutional overly broad searches (specifically, “seize a large quantity of data and perform the specific search later at an offsite location”), the Court found the “government [was] ‘abusing the two-step procedure . . .’ by requiring Apple to disclose the entire contents of an e-mail account.”
I invite you to explore the Court’s full rationale in support of this ruling and have linked the publicly available opinion here for your convenience.
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