Reversal in e-mail warrant case

August 10

Back in March, I had a long post titled “A remarkable new opinion on search warrants for online accounts — and why I think it’s wrong.” My post addressed an opinion by Magistrate Judge John Facciola that had rejected the common practice of executing e-mail warrants in two steps. Under the two-step process, the provider gives the government the entire contents of the account. Next, investigators search through the account for the specific evidence sought by the warrant. Facciola ruled that this procedure was “repugnant to the Fourth Amendment.” According to Facciola, the better approach — and perhaps the constitutionally mandated approach — is to have the service provider execute the warrant for the government and then send on the responsive files to investigators.

On Friday, Chief Judge Roberts reversed Magistrate Judge Facciola. According to Judge Roberts, the two-step procedure complies with the Fourth Amendment because it appropriately balances protecting the privacy of user’s files with the government’s need to obtain evidence based on a showing of probable cause. As a result, there was no need to enlist service providers in the task of executing e-mail warrants. Judge Roberts added:

Enlisting a service provider to execute the search warrant could also present nettlesome problems. As the government argues persuasively in its challenge, it would be unworkable and impractical to order Apple to cull the e-mails and related records in order to find evidence that is relevant to the government’s investigation. To begin with, non-governmental employees untrained in the details of the criminal investigation likely lack the requisite skills and expertise to determine whether a document is relevant to the criminal investigation. Moreover, requiring the government to train the electronic service provider’s employees on the process for identifying information that is responsive to the search warrant may prove time-consuming, increase the costs of the investigation, and expose the government to potential security breaches.

Magistrate Judge Facciola had also ruled that law enforcement was required to return or destroy files that were not responsive to the warrant. Judge Roberts disagreed about that, too:

The government also asserts that destroying or returning the evidence received from Apple could either expose the government to accusations that it “destroyed exculpatory evidence in violation of Brady v. Maryland,” or hinder the government’s “ability to lay a foundation for evidence and establish authenticity under Rule 901 and 1001-1006 of the Federal Rules of Evidence.” Govt.’s Challenge at 22. The concerns presented by the government are valid and the procedures for executing the search warrant strike the appropriate balance between the government’s interest in protecting the integrity of its investigation and the privacy interests at stake.

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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