Federal Judge Gives Government Open-Ended Access To All Content In A Suspect's Gmail Account

from the a-warrant-is-NOT-a-permission-slip-to-violate-the-4th-Amendment dept

Even though the government hates to get warrants for searches, sometimes it has no choice. But just because there's a warrant involved doesn't mean the search will be any less invasive. Warrant applications are supposed to contain specifics about what is being sought and where it likely resides based on the sworn statements of investigators. Unfortunately, this often doesn't seem to be the case, especially when it comes to electronic data.



Two recent pushbacks by magistrate judges have sent the government back to its desk to rewrite overly vague warrant requests. (In one case, this resulted in 'judge shopping,' rather than a rewrite. The new judge was unimpressed.) Judges willing to make the government fine tune warrant requests are still a very small minority, however. The more common approach is exemplified by Judge Gabriel Gorenstein of the Southern District of New York.

A New York judge defended a controversial order that gave the government access to all content of the Gmail account of a target in a money laundering investigation, holding that courts have long recognized the practical need for law enforcement to seize documents if only to determine whether they fall within the warrant.

The New York court, in contrast, granted on June 11 a warrant that permitted law enforcement to obtain emails and other information from a Gmail account, including the address book and draft mails, and to permit a search of the emails for certain specific categories of evidence.

"While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so," he wrote.

The court did not also place any limits on the manner or time frame in which the emails should be searched or retained.

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As John Ribeiro's article notes, other recent decisions have found that overly broad warrant requests are stretching the Fourth Amendment to the breaking point by not limiting the time period or scope of the electronic communications being sought. The government, on the other hand, has argued (with Gorenstein echoing) that seizing months of emails is no different than cloning an entire hard drive -- another common process deployed during criminal investigations. That it's no different doesn't suddenly make it more "right" or less of a violation of privacy.Those other decisions (one of which Gorenstein refers to in his) had no noticeable effect on the approval of this warrant, which asked for everything… and got it.Moving on from his "lesser of two wrongs" argument, Gorenstein added that allowing the service provider to return relevant communications would likely result in important information being overlooked.While this is likely true to some extent (the decision goes on to note that criminals often use codewords to discuss illegal activity -- something private company techs may not be versed in), the warrant itself is still highly problematic.So, the government will be given a suspect's entire email account and allowed to peruse it forfor as long as it wants to.As we've seen just recently, this is the sort of open-ended access the governmentbe given. In June, the Second Circuit Court returned a decision that said the government violated a person's Fourth Amendment rights by holding onto seized information for much longer than the period stated in the warrant. Not only did the feds dig through irrelevant information (after swearing in the warrant request that it wouldn't), it continued to do so until it came across something of possible interest to another federal agency (the IRS) and forwarded the data it supposedlydigging through. Gorenstein's approved warrant contains no such safeguards, which means the feds literally can't go beyond the scope of the request. It's a blank check disguised as a nod to the Fourth Amendment.The Fourth Amendment prohibits unreasonable searches and seizures. It does not go on to say "...unless you get a warrant." The warrant process is supposed tounreasonable searches and seizures by forcing law enforcement to detail (in a sworn statements) the specifics of what's being sought and the efforts that will be made to limit the seizure to the scope of the investigation. There's nothing "reasonable" about this open-ended request. Gorenstein's decision places ease of law enforcement access above Constitutional rights.

Filed Under: 4th amendment, email, gabriel gorenstein, sdny, warrants

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