DC Judge Denies Government’s Request to Seize Email Account

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.”

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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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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography


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