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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

Fourth Amendment Privacy
By Kellen Wittkop – Edited by Travis West In the Matter of a Warrant for All Content and Other Information Associated with the Email Account Maintained at Premises Controlled by Google, Inc., Case 1:14-mj-00309-UA (S.D.N.Y. Jul. 18, 2014) Memorandum Opinion A Southern District of New York Magistrate Judge granted the government’s application for a search warrant in a money laundering investigation to obtain emails and other information from a suspect’s Gmail account, conflicting with the opinions of several other judges. The SDNY magistrate judge addressed the conflicting opinions, disagreeing with the central issues in both a DC District Court and a District of Kansas opinion. The magistrate concluded that these courts too narrowly interpreted the Fourth Amendment’s particularity requirement, and also that the reasonableness standard of the Fourth Amendment does not require the court to place protocol on how the government conducts its search. In granting the warrant, the magistrate opened the door for government search and seizure of massive amounts of email information, spurring a controversial debate over privacy concerns. IT World, Reuters, and Tech Times provide an overview of the case. Slate criticizes the decision, stating that the magistrate “furthered an alarming trend” with the decision. Tech Law discusses reactions to the ruling. In the decision, Magistrate Judge Gabriel Gorenstein discussed the warrant application for “all content and other information within the Provider’s [Google, Inc.’s] possession. . .”, noting that the government also submitted an affidavit from an FBI agent detailing the probable cause behind the government’s belief that the suspect used the Gmail account to engage in criminal activity. In the Matter of a Warrant for All Content and Other Information Associated with the Email Account Maintained at Premises Controlled by Google, Inc., Case 1:14-mj-00309-UA (S.D.N.Y. Jul. 18, 2014) at 1–2.Under Section 2703 of the Stored Communications Act, the government is authorized to obtain emails pursuant to a search warrant under the Federal Rules of Criminal Procedure.  Id. at 2–3. To reach the decision, the magistrate judge addressed two distinct issues with the warrant: (1) “Whether Google Should be Directed to Produce All the Emails Associated with the Email Account” and (2) “Whether the Court Should Require a Protocol for Conducting the Search of the Email Account or Limit the Length of Time the Emails are Retained.”  Id. at 5, 14. Magistrate Judge Gorenstein explicitly addressed his knowledge of the conflicting decisions from the DC District Court and District of Kansas Court, finding that the DC opinion “too narrowly construes the Fourth Amendment’s particularity requirement and is contrary to copious precedent.”  Id. at 7. Accordingly, he found that searches of email accounts are akin to those of hard drives, and case law supports the government’s ability to access the entire Gmail account in its search.  Id. at 11. Additionally, he concluded that requiring Google, Inc., as the host of the email account, to conduct the search before turning over the information to the government—as the DC opinion had suggested—s search, such as how long the emails are retained or the process for deleting information, is not required by case law. Id. at 15–17. If the government “acts improperly,” the magistrate judge reasoned “our judicial system provides remedies.” Id. at 18. This decision marks a first in the government’s ability to access entire email accounts, an expansion of search and seizure power that many call a problem because, as Slate notes, “Hard drives and inboxes, then, aren’t really like a file cabinet—they’re like a whole house filled with information tucked in every nook and cranny.”