770 F. Supp. 2d 1138
W.D. Wash.2011Background
- Government seeks warrant to search Edward Cunnius's residence, seize digital devices, and search electronically stored information for copyright infringement/counterfeit goods evidence.
- Affidavit ties defendant to counterfeit Microsoft software via Craigslist and undercover purchases.
- Court finds probable cause to search but overbroad: lacks filter team and fails to forego plain view.
- Warrant protocol would allow search of all data and potential second warrants for data outside scope, risking a general search.
- Court follows CDT III guidelines and declines to authorize a broad search without specified safeguards.
- Opinion seals pending further proceedings and directs denial of the government’s warrant application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the warrant is permissible under the Fourth Amendment’s particularity requirement | Government contends probable cause to search devices exists | Cunnius argues broad, non-tailored search violates particularity | Denied as overbroad/general |
| Whether a filter team and foregone plain view are required for digital searches | Government resists filter team; argues scanning is lawful | Cunnius argues safeguards are necessary to prevent over-seizing | Required by CDT III and denied without these safeguards |
| Whether hash-value search protocols can be used to expand search beyond scope | Hashing may narrow search to relevant data | Hash libraries could automatically surface non-goal data | Prohibited unless added restriction excluding non-target items |
| Whether CDT III safeguards must govern digital search procedures | Government relies on broad methodologies within limits | CDT III safeguards are essential to prevent over-seizure | Yes; warrant denied without these safeguards (filter team, segregation, etc.) |
Key Cases Cited
- United States v. Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir. 2010) (en banc decision emphasizing safeguards for electronic searches and segregation)
- United States v. Wong, 334 F.3d 831 (9th Cir. 2003) (probable cause standard for searches)
- United States v. Giberson, 527 F.3d 882 (9th Cir. 2008) (computers and special considerations in searches)
- United States v. Payton, 573 F.3d 859 (9th Cir. 2009) (computers remain subject to reasonable Fourth Amendment searches; need for safeguards)
- United States v. Romm, 455 F.3d 990 (9th Cir. 2006) (definition of downloading and cache data)
- Tamura, 694 F.2d 591 (9th Cir. 1982) (related to over-seizing and privacy in electronic data)