Court adopts a Fourth Amendment right to the deletion of non-responsive computer files

June 18

The Second Circuit has handed down a very important new Fourth Amendment case, United States v. Ganias. In an opinion by Judge Chin, the court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant.

By way of background, courts have long held that the practicality of computer search and seizure allows government agents to seize computers and search them later for responsive files. In Ganias, the Second Circuit makes clear that the government’s right to overseize is temporary, and that it has no right to continue to retain the non-responsive files indefinitely. The court doesn’t say exactly when the government has to destroy, delete, or return its copy of the non-responsive files. But the Second Circuit does make clear that the government has such a duty: Continued retention of the files is a Fourth Amendment “seizure,” the Court holds, and eventually the retention goes on for so long that the retention is unreasonable. Put simply, individuals have a right to the deletion or return of non-responsive computer files.

This is a hugely important case.

A quick recap of the facts. In 2003, the government obtained a warrant to search the Ganias’s accounting business for evidence of fraud. When executing the 2003 warrant, the agents did not seize any physical computers. Instead, they made images of several computers (that is, perfect copies of every file on the computers) and took away the images while leaving the original computers behind. The agents copied the images onto 19 DVDs. Investigators took their time in searching the DVDs, but by a year later they had searched the images for the files that were responsive to the warrant. The agents kept the DVDs, which they saw as government property. Later on, agents came to think that Ganias was involved in tax offenses, too. They realized that the evidence of tax crimes could be on the DVDs in their possession. The agents obtained an additional warrant to search the DVDs again, this time for evidence of tax offenses. The government ended up searching the DVDs under the second warrant in 2006, about two-and-a-half years after it had initially entered Ganias’s business and copied his computer files pursuant to the 2003 warrant.

The Second Circuit held that retaining the files on the DVDs that were not responsive to the first warrant was an unreasonable seizure in violation of the Fourth Amendment. The Court suppressed the fruits of the second warrant because that search should never have occurred. Here’s the key language:

[W]e consider . . . whether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations. We hold that it does not.

If the 2003 warrant authorized the Government to retain all the data on Ganias’s computers on the off-chance the information would become relevant to a subsequent criminal investigation, it would be the equivalent of a general warrant. The Government’s retention of copies of Ganias’s personal computer records for two-and-a-half years deprived him of exclusive control over those files for an unreasonable amount of time. This combination of circumstances enabled the Government to possess indefinitely personal records of Ganias that were beyond the scope of the warrant while it looked for other evidence to give it probable cause to search the files. This was a meaningful interference with Ganias’s possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 708 (1983) (detaining a traveler’s luggage while awaiting the arrival of a drug-sniffing dog constituted a seizure); see also Soldal v. Cook Cnty., 506 U.S. 56, 62–64, 68 (1992) (explaining that a seizure occurs when one’s property rights are violated, even if the property is never searched and the owner’s privacy was never violated); Loretto v. Teleprompter Manhattan CA TV Corp., 458 U.S. 419, 435 (1982) (“The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.”).

We conclude that the unauthorized seizure and retention of these documents was unreasonable. The Government had no warrant authorizing the seizure of Ganias’s personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of American Boiler and IPM. Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated Ganias’s Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.

The court then rejected several arguments made by the government to justify retaining the non-responsive files:

First, [the government] argues that it must be allowed to make the mirror image copies as a matter of practical necessity and, according to the Government’s investigators, those mirror images were “the government’s property.” As explained above, practical considerations may well justify a reasonable accommodation in the manner of executing a search warrant, such as making mirror images of hard drives and permitting off-site review, but these considerations do not justify the indefinite retention of non-responsive documents. See Comprehensive Drug Testing, Inc., 621 F.3d at 1171. Without a warrant authorizing seizure of Ganias’s personal financial records, the copies of those documents could not become ipso facto “the government’s property” without running afoul of the Fourth Amendment.

Second, the Government asserts that by obtaining the 2006 search warrant, it cured any defect in its search of the wrongfully retained files. But this argument “reduces the Fourth Amendment to a form of words.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). In Silverthorne, the Government, “without a shadow of authority[,] went to the office of [the defendants'] company and made a clean sweep of all the books, papers and documents found there.” Id. at 390. The originals were eventually returned because they were unlawfully seized, but the prosecutor had made “[p]hotographs and copies of material papers” and used these to indict the defendants and obtain a subpoena for the original documents. Id. at 391. Justice Holmes succinctly summarized the Government’s argument supporting the constitutionality of its actions as follows: “[A]lthough of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act.” Id.

Unsurprisingly, the Supreme Court rejected that argument: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all” unless some exception applies. Id. at 392. The same rationale applies here. If the Government could seize and retain non-responsive electronic records indefinitely, so it could search them whenever it later developed probable cause, every warrant to search for particular electronic data would become, in essence, a general warrant.

Third, the Government argues that it must be permitted to search the mirror images in its possession because the evidence no longer existed on Ganias’s computers. But the ends, however, do not justify the means. The loss of the personal records is irrelevant in this case because the Government concedes that it never considered performing a new search of Ganias’s computers and did not know that the files no longer existed when it searched the mirror images in its possession. And even if it were relevant, the Fourth Amendment clearly embodies a judgment that some evidence of criminal activity may be lost for the sake of protecting property and privacy rights. See, e.g., United States v. Calandra, 414 U.S. 338, 361 (1974) (“The judges who developed the exclusionary rule were well aware that it embodied a judgment that it is better for some guilty persons to go free than for the [Government] to behave in forbidden fashion.”).

Fourth, the Government contends that returning or destroying the non-responsive files is “entirely impractical” because doing so would compromise the remaining data that was responsive to the warrant, making it impossible to authenticate or use it in a criminal prosecution. Appellee Br. at 34. We are not convinced that there is no other way to preserve the evidentiary chain of custody. But even if we assumed it were necessary to maintain a complete copy of the hard drive solely to authenticate evidence responsive to the original warrant, that does not provide a basis for using the mirror image for any other purpose.

Finally, the Government argues that Ganias’s failure to bring a motion for the return of property, pursuant to Federal Rule of Criminal Procedure 41(g), precludes him from seeking suppression now. Although the district court accepted this argument, we find no authority for concluding that a Rule 41(g) motion is a prerequisite to a motion to suppress. See Fed.R.Crim.P. 41(g) (“A person aggrieved … may move for the property’s return.” (emphasis added)); Fed.R.Crim.P. 41(h) (“A defendant may move to suppress evidence ….“ (emphasis added)). Imposing such a prerequisite makes little sense in this context, where Ganias still had the original computer files and did not need the Government’s copies to be returned to him. Moreover, we fail to see what purpose a Rule 41(g) motion would have served, given the Government’s position that non-responsive files in its possession could not feasibly have been returned or purged anyway.

Because the Government has demonstrated no legal basis for retaining the non-responsive documents, its retention and subsequent search of those documents were unconstitutional. The Fourth Amendment was intended to prevent the Government from entering individuals’ homes and indiscriminately seizing all their papers in the hopes of discovering evidence about previously unknown crimes. See Entick, 95 Eng. Rep. at 817–18; see also Jones, 132 S.Ct. at 949. Yet this is exactly what the Government claims it may do when it executes a warrant calling for the seizure of particular electronic data relevant to a different crime. Perhaps the “wholesale removal” of intermingled computer records is permissible where off-site sorting is necessary and reasonable, Tamura, 694 F.2d at 595–97, but this accommodation does not somehow authorize the Government to retain all non-responsive documents indefinitely, for possible use in future criminal investigations. See Comprehensive Drug Testing, 621 F.3d at 1171.

This is a hugely important case that will have widespread implications. Whenever government agents copy files pursuant to a warrant, they are going to have to delete or return all the files that are non-responsive as a matter of Fourth Amendment reasonableness. Right now lawyers in the federal government are no doubt hard at work trying to figure out how long files can be retained and what degree of specificity counts as a “document” to know if it is responsive or non-responsive.

Some readers will want to know if I think the court’s decision is correct. At first blush — this is a 3am post sent out quickly, not one based on lots of reflection — I tend to think it’s quite plausible. The core idea that copying the files is a seizure is correct, I think, for reasons I argued here. If you figure that the practicalities of computer searches require over-seizure beyond what the traditional warrant rules would permit, then a deletion rule seems like a fair bookend. It’s sort of like an exigency concept, in which the exigency ends when the practical need is eliminated: The government can overseize because it has to, but it can’t take unfair advantage of that overseizure by just storing copies of files indefinitely in government custody. I’ll have to think more about this, but at least my initial reaction is that the court’s basic approach makes some Fourth Amendment sense.

As an aside, this decision is a good example of why ex ante search restrictions written into computer warrants by individual magistrate judges are not necessary. Under the Second Circuit’s decision, every computer warrant now has an ex ante search restriction written into it, by virtue of caselaw, prohibiting the indefinite retention of non-responsive files. Perhaps the introduction of more caselaw on the scope of computer warrants will make clear that reasonableness should be a matter for appellate decisionmaking ex post, not individual magistrate practices ex ante.

Finally, some kudos should go to Paul Ohm for arguing in favor of a somewhat similar approach in a 2005 essay, The Fourth Amendment Right to Delete, 119 Harv. L. Rev. F. 10 (2005), which unfortunately is no longer online. Perhaps Paul deleted it, which was his right, I suppose.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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