13 F. Supp. 3d 157 | D.C. Cir. | 2014
MEMORANDUM OPINION
The government challenges an order by Magistrate Judge John M. Facciola denying its second application for a search warrant under § 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701-12. The magistrate judge denied the government’s application on the ground that the requested warrant amounted to an unconstitutional general warrant due, in large part, to the procedures set forth in the application for executing the requested warrant. Following the magistrate judge’s denial of the search warrant application and the government’s subsequent challenge to that decision, the Electronic Frontier Foundation moved for leave to file an amicus brief. Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the war
BACKGROUND
On March 5, 2014, the government filed under 18 U.S.C. § 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701-2712 a sealed application for a search warrant for electronic communications and other evidence stored on a computer.
The government filed a second application for a search warrant on March 28, 2014. In the revised application, the gov
All e-mails, including e-mail content, attachments, source and destination addresses, and time and date information, that constitute evidence and instrumen-talities of violations of 41 U.S.C § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy), dated between January 14, 2014, to the present, including e-mails referring or relating to a government investigation involving any or all of the following: [individuals and entities have been redacted].
Id. Attach. B at 1. Attachment C to the government’s revised application included the specific procedures for executing the search warrant wherein the government would first “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,” and then copy and retain those emails that are “within the scope of Attachment B.” Id. Attach. C at 1. Law enforcement personnel would then “seal any information from Apple that does not fall within the scope of Attachment B,” and would be prohibited from “further review [of] the information absent an order of the Court.” Id.
The magistrate judge rejected the government’s revised application for a search warrant in a second memorandum opinion. In Re: Search of Info. Associated with [Redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., Mag. Case No. 14-228(JMF), 13 F.Supp.3d 145, 2014 WL 1377793 (D.D.C. Apr. 7, 2014). Reiterating the rationale set forth in the first memorandum opinion, the magistrate judge again denied the government’s application for a search warrant finding that it violated the Fourth Amendment because it amounted to an overly broad search warrant. Id. at 148-50, 152-53, 2014 WL 1377793, at *2-3, *5. In addition, the magistrate judge rejected the government’s use of the two-step procedure under Rule 41(e), stating that the government was “ ‘abusing the two-step procedure under Rule 41’ by requiring Apple to disclose the entire contents of an e-mail account.” Id. at 153, 2014 WL 1377793, at *5 (quoting In Re: Search of Info., Mag. Case No. 14-228(JMF), — F.Supp.3d at -, 2014 WL 945563, at *5). To avoid issuing a general warrant that would permit the government to seize large amounts of data not supported by probable cause, the magistrate judge recommended that Apple perform the necessary search and turn over any relevant information to the government. Id. at 153-54, 2014 WL 1377793, at *6.
The government filed a challenge
On May 2, 2014, the Electronic Frontier Foundation (“EFF”) filed a motion for leave to file a brief as amicus curiae in order to address pertinent questions involving the Fourth Amendment and new technologies. Mot. for Leave to File Brief Amicus Curiae of Elec. Frontier Found, at 1.
DISCUSSION
I. STANDARD OF REVIEW
Under the Stored Communications Act, the government may apply for a warrant requiring an electronic service provider to disclose the contents of electronic communications, or other records and information, from a “court of competent jurisdiction.” 18 U.S.C. §§ 2703(a), (b)(1)(A), (c)(1)(A). The statute defines a court of competent jurisdiction as “any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that ... has jurisdiction over the offense being investigated.” Id. § 2711 (3)(A)(i). Here, the basis for the magistrate judge’s jurisdiction is the Federal Magistrates Act, 28 U.S.C. §§ 631-639. The Federal Magistrates Act provides magistrate judges with authority to decide certain pre-trial matters, including whether to grant search warrant applications.
II. FOURTH AMENDMENT
The Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched; and the persons or things to be seized.” U.S. Const. Amend. IV. “As the text of the Fourth Amendment indicates, the ultimate measure of
“A judicial officer who is considering an application for a search warrant must decide ‘whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Warren, 42 F.3d 647, 652 (D.C.Cir.1994) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “ ‘Under the Fourth Amendment a search warrant sufficiently describes the place to be searched if the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.’ ” United States v. Vaughn, 830 F.2d 1185, 1186 (D.C.Cir.1987) (quoting Moore v. United States, 461 F.2d 1236, 1238 (D.C.Cir.1972)).
“The manifest purpose of th[e] particularity requirement was to prevent general searches.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). General warrants “le[ave] to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched.... [These warrants] provide[ ] no judicial check on the determination of the executing officials that the evidence available justified an intrusion into any particular home.” Steagald v. United States, 451 U.S. 204, 220, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). “By limiting the authorization to search to the specific areas and things for which there is probable cause to search,” the Supreme Court has explained, “the [particularity] requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Garrison, 480 U.S. at 84, 107 S.Ct. 1013.
A. Application for search warrant
The magistrate judge rejected the government’s application as an unconstitutional general warrant not because the government failed to provide sufficient facts to support a finding of probable cause for the particular e-mails sought, or because the government failed to specify with particularity the electronic records to be seized or the place to search for those records. Rather, in denying the government’s application, the magistrate judge determined that the government was attempting to “seize large quantities of e-mails for which it ha[d] not established probable cause.” In Re: Search of Info. Associated with [redacted]@mac.com, 13 F.Supp.3d at 152, 2014 WL 1377793, at *5. Moreover, the
However, the government’s warrant and the procedures for the warrant’s execution appear to comport with the Constitution. First, the government’s search warrant properly restricts law enforcement discretion to determine the location to be searched and the items to be seized. The government identifies the precise location to be searched — in this case, the [redacted] @mac.com e-mail account — and specifies in the attachments to its application the particular e-mails to be seized. In this way, law enforcement discretion is constrained and limited to the items to be seized that are specified in Attachment B to the warrant. See generally, Stanford, 379 U.S. at 485-86, 85 S.Ct. 506 (“ ‘The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’ ” (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927)).
Second, the information contained in the affidavit accompanying the search warrant supports a finding of probable cause because there is a fair probability that the electronic communications and records that the government seeks, which are described in detail in the attachments to the government’s search warrant application, will be found in the particular place to be searched. Moreover, the affidavit includes additional background information on the particular types of records that must be disclosed, the specific crimes for which the government seeks evidence, and the targeted entities and individuals. When read together with the affidavit,
Furthermore, the procedures the government adopts for executing the search warrant comply with the Fourth Amendment and are permissible under Rule 41. “The Federal Rules of Criminal Procedure are carefully tailored ground rules for fair and orderly procedures in administering criminal justice. Rule 41
Computers and other electronic storage media commonly contain such large amounts of information that it is often impractical for law enforcement to review all of the information during execution of the warrant at the search location. This rule acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.
Fed. R. Crim. P. 41(e)(2) advisory committee’s note. Several courts have found the two-step procedure to be reasonable under the Fourth Amendment, provided that there is a valid warrant supported by probable cause.
In addition, because the government’s proposed procedures comply with the Fourth Amendment and are authorized by Rule 41, there is no need for Apple to search through e-mails and electronic records related to the target account and determine which e-mails are responsive to the search warrant. Enlisting a service provider to execute the search warrant could also present nettlesome problems. As the government argues persuasively in its challenge, it would be unworkable and impractical to order Apple to cull the emails and related records in order to find evidence that is relevant to the government’s investigation. Govt.’s Challenge at 17-21. To begin with, non-governmental employees untrained in the details of the criminal investigation likely lack the requisite skills and expertise to determine whether a document is relevant to the criminal investigation. Moreover, requiring the government to train the electronic service provider’s employees on the process for identifying information that is responsive to the search warrant may prove time-consuming, increase the costs of the
As the government argues in its challenge, law enforcement officers are provided with considerable discretion in determining how to execute a particular search warrant. Govt’s Challenge at 7. The Supreme Court has explained that a search warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[.]” Dalia, 441 U.S. at 257, 99 S.Ct. 1682. That said, although law enforcement officers are afforded wide discretion in executing search warrants, “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258, 99 S.Ct. 1682; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559-60, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). Accordingly, the government will be afforded deference in deciding how to execute the search warrant, subject to later review by a court to determine whether the search complied with the Fourth Amendment’s reasonableness requirement.
Finally, it should be noted that it is certainly true that searches for electronic data may present increased risks to the individual’s right to privacy as technological advances enable law enforcement to monitor and collect large volumes of electronic communications and other data. See, e.g., Schesso, 730 F.3d at 1042 (“Because electronic devices could contain vast quantities of intermingled information, raising the risks inherent in over-seizing data ... law enforcement and judicial officers must be especially cognizant of privacy risks when drafting and executing search warrants for electronic evidence.” (citations omitted)). Discussing the serious risk to privacy in searches involving an individual’s personal files, the Supreme Court stated as follows:
We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.... In [these] kinds of searches, responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.
Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). At the same time, searches for electronic data present unique challenges for law enforcement officials tasked with prosecuting crimes and gathering evidence relevant to criminal investigations. Indeed, the practical realities of searches for electronic records may require the government to examine information outside the scope of the search warrant to determine whether specific information is relevant to the criminal investigation and falls within the scope of the warrant. Given these competing interests, courts must strike the proper balance between ensuring that the government’s ability to effectively and efficiently investigate and prosecute crimes is implemented and assuring respect for individuals’ Fourth Amendment rights. See, e.g., United States v. Ganias, 755 F.3d 125, 134 (2d Cir.2014) (“Because the degree of privacy secured to citizens by the Fourth Amendment has been impacted by the advance of technology, the challenge is to adapt traditional Fourth Amendment concepts to the Government’s modern, more sophisticated investigative tools.”); United
III. EFF MOTION TO FILE AMICUS BRIEF
Courts have wide discretion in deciding whether to grant a third party leave to file an amicus curiae brief. See Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 519 F.Supp.2d 89, 93 (D.D.C.2007). Court have permitted parties to file amicus briefs where “the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs.” Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 545 (7th Cir.2003). In addition, courts have granted amici permission to file briefs when “ ‘a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case,’” or in cases where “‘the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.’ ” Jin v. Ministry of State Sec’y, 557 F.Supp.2d 131, 137 (D.D.C.2008) (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir.1997)).
EFF seeks leave to file an amicus brief in this matter in light of the “critical questions about the application of the Fourth Amendment to emerging technologies,” and to address “the underlying constitutional issues involved here.” Mot. for Leave to File Brief of Amicus Curiae of Elec. Frontier Found, at 1-2. Although EFF may be able to offer “arguments, theories, [and] insights,” Voices for Choices, 339 F.3d at 545, and other information addressing the Fourth Amendment’s application to emerging technologies, such information is addressed in the magistrate judge’s comprehensive discussion on the privacy interests at stake in searches for electronic information. See In Re: Search of Info. Associated with [redacted] @mac.com, 13 F.Supp.3d at 149-53, 2014 WL 1377793, at *3-5. Furthermore, given that the government’s application for a search warrant complies with the Fourth Amendment, there is no apparent need to discuss, at least at this stage, the Fourth Amendment’s application to various emerging technologies generally. The government’s application meets the Fourth Amendment’s requirements for issuing a search warrant for electronic evidence and the procedure for executing the warrant is supported by Rule 41. Accordingly, and in light of the wide discretion afforded to courts in determining whether to permit third parties to file amicus briefs, EFF’s motion to file an amicus brief will be denied.
The government’s application for a search warrant complies with the requirements under the Fourth Amendment and the procedures for executing the warrant are authorized by Rule 41 of the Federal Rules of Criminal Procedure. Accordingly, the magistrate judge’s second memorandum opinion and order will be vacated and the government’s application for a search warrant will be granted. In addition, EFF’s motion to file an amicus brief will be denied. A separate order accompanies this memorandum opinion.
. Under the Stored Communications Act, an electronic communications provider is required to disclose contents, records, and other information of an electronic communication to a governmental entity, with or without notice to the subscriber, provided that the statutory requirements are met. 18 U.S.C. § 2703(a), (b), (c)(1)(A). To require an electronic service provider to disclose either the contents of electronic communications, or records and other information, the governmental entity must “obtain[ ] a warrant issued using the procedures described in the Federal Rules of Criminal Procedure ... by a court of competent jurisdiction.” Id. § 2703(b)(1)(A), (c)(1)(A).
. Due to the government’s ongoing criminal investigation, very few details regarding the investigation will be addressed in this opinion.
.Federal Criminal Rule 41(e) sets forth the requirements for issuing a warrant, such as the information that must be contained in the warrant and the proper protocol for executing the warrant. Courts are permitted to issue warrants for the “seizure of electronic storage media or the seizure or copying of electronically stored information.” Fed. R. Crim. P. 41(e)(2)(B). Included in that provision is authorization for subsequent off-site review of electronic information obtained in accordance with the search warrant. Id. The rule expressly "authorizes a later review of the media or information consistent with the warrant[J” Id.
. The government styles its challenge as an appeal, but the reference is a misnomer. With the exception of authority granted by Federal Rule of Criminal Procedure 58 concerning misdemeanor proceedings handled by a magistrate judge under 18 U.S.C. § 3401, ble district court does not exercise appellate power. See, e.g., United States v. Choi, 818 F.Supp.2d 79, 85 (D.D.C.2011) ("The magistrate judge is not an inferior court, and the district court does not stand in an appellate capacity over the magistrate.”).
. Under § 636, pretrial matters include the issuing search warrants. H.R. Rep. 94-1609, at 8, 1976 U.S.C.C.A.N. 6162, 6168; accord Gomez v. United States, 490 U.S. 858, 868 n. 16, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989).
. A “motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action,” are not included in this grant of authority to magistrate judges. 28 U.S.C. § 636(b)(1)(A).
."A finding is clearly erroneous when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) (internal quotation marks omitted).
. The warrant application must be read in conjunction with the affidavit because the warrant application expressly incorporates the affidavit. See, e.g., Vaughn, 830 F.2d at 1186 (" '[T]he warrant may properly be construed with reference to an affidavit for purposes of sustaining the particularity of the premises to be searched, provided (1) the affidavit accompanies the warrant, and in addition (2) the warrant uses suitable words of reference which incorporate the affidavit by reference.’" (quoting Moore, 461 F.2d at 1238)).
. The D.C. Circuit has not directly addressed the propriety of the procedures for executing search warrants for electronic evidence outlined in Rule 41(e). In its challenge, the government argues that the D.C. Circuit case of United States v. Heldt, 668 F.2d 1238 (D.C.Cir.1981), "does not reject the two-step process for execution of warrants for electronic evidence.” Govt.'s Challenge at 11-12 n.5. Although it is true that the Heldt case does not expressly reject the two-step process under Rule 41, the case is not applicable to the issues presented here — namely, whether the government may remove all files and records from a location to perform a subsequent search off-site to identify which e-mails are items specified under the search warrant. The Heldt case involved an on-site search performed by law enforcement where certain documents were seized under the plain view exception. That was not a case where, as here, an entire set of files was seized for a subsequent off-site search to identify which items fall within the scope of warrant.
. The government also asserts that destroying or returning the evidence received from Apple could either expose the government to accusations that it “destroyed exculpatory evidence in violation of Brady v. Maryland," or hinder the government's "ability to lay a foundation for evidence and establish authenticity under Rule 901 and 1001-1006 of the Federal Rules of Evidence.” Govt.'s Challenge at 22. The concerns presented by the government are valid and the procedures for executing the search warrant strike the appropriate balance between the government’s interest in protecting the integrity of its investigation and the privacy interests at stake.