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In re a Warrant for All Content and Other Information Associated

United States District Court, S.D. New York

July 18, 2014

IN THE MATTER OF A WARRANT FOR ALL CONTENT AND OTHER INFORMATION ASSOCIATED WITH THE EMAIL ACCOUNT xxxxxxx@GMAIL.COM MAINTAINED AT PREMISES CONTROLLED BY GOOGLE, INC.

As Corrected August 7, 2014.

Page 387

For USA, Plaintiff: Russell Capone, LEAD ATTORNEY, United States Attorney Office, SDNY, New York, NY.

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MEMORANDUM OPINION

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

On June 11, 2014, this Court was presented with an application for a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § § 2703(a), (b)(1)(A), and (c)(1)(A). The application sought a warrant to obtain emails and other information from a " Gmail" account, which is hosted by Google, Inc., and to permit a search of those emails for certain specific categories of evidence. The Court granted the application on the day it was presented. In light of decisions issued elsewhere in the country that have denied search warrants in similar circumstances -- particularly in the District of Columbia and the District of Kansas, see, e.g., In the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F.Supp.3d 145, 2014 WL 1377793 (D.D.C. April 7, 2014) (" D.C. Opinion" ); In the Matter of Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, 2013 WL 4647554 (D. Kan. Aug. 27, 2013) (" Kansas Opinion" ) -- we write to explain why we issued the warrant here.

I. BACKGROUND

As part of its investigation into possible violations of 31 U.S.C. § § 5330 and 5322 (unlawful money remitting) and 18 U.S.C. § § 371 (conspiracy to commit unlawful money remitting) and 1956 (conspiracy to commit money laundering), the Government brought an application for a search warrant seeking records relating to a " Gmail" email address, which is maintained and controlled by Google. The application includes an affidavit from an agent of the Federal Bureau of Investigation that describes the Government's investigation and provides probable cause to believe that the target of the Government's investigation has been using the subject email account to engage in criminal activity. The affidavit also provides probable cause to believe that emails and other information in that account will provide evidence of those criminal activities. Because the investigation is ongoing and the warrant and application are sealed, this Memorandum Opinion will not provide any further information regarding the probable cause showing.

The search warrant directs Google to provide to the Government " all content and other information within the Provider's possession, custody, or control associated with" the email account, including all emails sent, received, or stored in draft form, all address book information, and a variety of other information associated with the account. The search warrant provides that law enforcement personnel " are authorized to review the records produced by the Provider in order to locate" certain specific categories of evidence described in the warrant. The warrant does not contain any search protocol and does not limit the amount of time the Government may take to review the account material disclosed by Google. The warrant also does not provide for any destruction of the material disclosed once the emails within the categories listed in the warrant are identified.

II. APPLICABLE LAW

A. The Stored Communications Act

The Government's application as well as Google's obligation to disclose the emails

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and related information are governed by the Stored Communications Act of 1986, 18 U.S.C. § § 2701-2712. Section 2703 of that statute authorizes the Government to obtain the " contents" of an " electronic communication" that is in " electronic storage" or held by a " provider of remote computing service" -- such as emails -- pursuant to a search warrant under the Federal Rules of Criminal Procedure. See 18 U.S.C. § § 2703(a), 2703(b)(1)(A).[1]

B. The Fourth Amendment to the United States Constitution

The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. The Supreme Court has held that the " essential purpose of the Fourth Amendment is to shield the citizen from unwarranted intrusions into his privacy" and that " [t]his purpose is realized by Rule 41 of the Federal Rules of Criminal Procedure . . . which implements the Fourth Amendment . . . . " Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514, 1958-2 C.B. 1005 (1958). " The Fourth Amendment was a response to the English Crown's use of general warrants, which often allowed royal officials to search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown." Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011); accord United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013). " To achieve its goal, the Warrants Clause requires particularity and forbids overbreadth." United States v. Cioffi, 668 F.Supp.2d 385, 390 (E.D.N.Y. 2009); accord United States v. Zemlyansky, 945 F.Supp.2d 438, 450 (S.D.N.Y. 2013). " Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited to the probable cause on which the warrant is based." United States v. Hill, 459 F.3d 966, 973 (9th Cir. 2006) (citation omitted). " In determining whether a warrant is overbroad, courts must focus on whether there exists probable cause to support the breadth of the search that was authorized." Zemlyansky, 945 F.Supp.2d at 464 (citation and quotation marks omitted).

As the Supreme Court has repeatedly held, " the ultimate touchstone of the Fourth Amendment is 'reasonableness." ' Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); accord Riley v. California, __ U.S. __, 134 S.Ct. 2473, 189 L.Ed.2d 430, 2014 WL 2864483, at *6 (U.S. 2014); Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

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Thus, the " manner in which the government executes [a] warrant must comport with the Fourth Amendment's reasonableness standard." United States v. Metter, 860 F.Supp.2d 205, 212 (E.D.N.Y. 2012) (citation omitted); accord Hill, 459 F.3d at 978.

III. DISCUSSION

In addition to the D.C. Opinion and the Kansas Opinion previously cited, the Court is aware of other decisions emanating from these courts that have denied applications for warrants authorizing searches of email accounts.[2] We address in this Memorandum Opinion two issues that were central to the results reached in these cases. First, is it appropriate to issue a search warrant that allows the Government to obtain all emails in an account even though there is no probable cause to believe that the email account consists exclusively of emails that are within the categories of items to be seized under the search warrant? As a subsidiary issue, we will also consider whether we may in the alternative require the email host -- in this case, Google -- to conduct a review of the emails and provide to the Government only those emails responsive to categories listed in the warrant. Second, assuming we permit delivery of the entire ...


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