In re Warrant to Search a Target Computer at Premises Unknown
958 F. Supp. 2d 753
S.D. Tex.2013Background
- Government seeks Rule 41 warrant to surreptitiously install software on Target Computer to extract stored data, capture photographs, and track location for 30 days.
- In 2013 unknown actors breached John Doe's personal email and used it to access his bank account; an attempted large wire transfer followed from a similar email address.
- The email/IP activity suggested a foreign country destination; the investigation identified suspects but not their location or the Target Computer.
- The software would search the Target Computer's hard drive, RAM, and storage, activate the camera, determine latitude/longitude, and transmit data to FBI in this district.
- The data sought includes records of IPs, internet activity, emails, contacts, chats, photos, and 30-day prospective data such as location and applications run, i.e., extensive surveillance.
- The government contends the search is authorized by Rule 41, which raises questions about territory, particularity, and video-surveillance standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 41(b) territorial limits are satisfied | Doe argues information will be examined in this district. | Government argues information from the Target Computer will be examined here. | Territorial limits not satisfied. |
| Whether Fourth Amendment particularity is satisfied | Doe contends target computer cannot be reliably located and identified. | Government contends sufficient description and safeguards. | Particularity not satisfied. |
| Whether video camera surveillance standards are met | Doe asserts surveillance would be intrusive and inadequately justified. | Government argues statutory-like standards for minimization and alternatives apply. | Video surveillance standards not met. |
| Whether installation of software constitutes a tracking device under Rule 41(b)(4) or similar | Doe challenges extraterritorial installation and location-tracking aspects. | Government contends tracking-device concepts may apply. | Not satisfied under the applicable provisions. |
Key Cases Cited
- United States v. New York Tel. Co., 434 U.S. 159 (U.S. (1977)) (recognizes intangible property includes information under Rule 41)
- United States v. Roberts, 86 F.Supp.2d 678 (S.D. Tex. 2000) (digital information analogy to containers)
- United States v. Barth, 26 F.Supp.2d 929 (W.D. Tex. 1998) (treatment of computers as containers for Fourth Amendment analysis)
- United States v. David, 756 F.Supp. 1385 (D. Nev. 1991) (computer as a container for search/seizure purposes)
- Cuevas-Sanchez v. United States, 821 F.2d 248 (5th Cir. 1987) (video surveillance standards borrowed from wiretap statutes; need alternatives and minimization)