Opinion
Case No.: 18-mc-50318
02-04-2020
IN RE SEARCH OF RECORDS, INFORMATION, AND DATA ASSOCIATED WITH 14 EMAIL ADDRESSES CONTROLLED BY GOOGLE, LLC.
Mark J. Kriger, LaRene & Kriger, Stephen L. Hiyama, U.S. Attorney's Office, Detroit, MI, for Search/Seizure Warrant.
Mark J. Kriger, LaRene & Kriger, Stephen L. Hiyama, U.S. Attorney's Office, Detroit, MI, for Search/Seizure Warrant.
REDACTED AMENDED OPINION AND ORDER DENYING MOTION TO QUASH GOOGLE SEARCH WARRANT
GERSHWIN A. DRAIN, United States District Judge
I. INTRODUCTION
Presently before the Court is the Movants['] Motion to Quash Google Search Warrant, filed on April 16, 2018. The Government filed a Response to the Movants' present motion on April 25, 2018 and Movants filed a Reply on May 3, 2018. The Government also filed a Supplemental Response on October 17, 2018, and Movants filed a Reply to the Government's Supplemental Response on October 19, 2018. A hearing was held on October 25, 2018. For the reasons that follow, the Court will deny the Movants' Motion to Quash Google Search Warrant.
II. FACTUAL BACKGROUND
The instant dispute stems from the issuance of a search warrant by Magistrate Judge Anthony Patti on February 26, 2018. The search warrant is captioned In the Matter of the Search of Records, Information, and Data Associated with 14 Email Addresses Controlled by Google, LLC and was issued in connection with the Government's investigation of [an institution for engaging in a scheme to defraud the United States and conspiracy].
....
The Google warrant at issue herein seeks disclosure of every email and email attachment associated with 13 identified email accounts. It also seeks all email header information associated with each account and all subscriber information relating to the account for the period from January 1, 2009 through January 31, 2016. On April 4, 2018, Movants received notice from Google that it had received legal process relating to their Gmail accounts. Google provided a redacted copy of the warrant to the Movants upon their request.
While the caption suggests the warrant seeks disclosure of evidence from 14 email accounts, only 13 accounts are listed in the warrant. Moreover, because only [two individuals (Movants) ] bring the instant motion, there is no basis for them to object to Google's immediate disclosure of the evidence delineated in the warrant that is associated with the 11 other email accounts.
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Attachment B to the Google warrant has two parts; the first part lists the information to be disclosed by Google and the second part lists the items to be seized by the Government. Specifically, part II states in relevant part:
II. Information to be Seized by the Government
The government is authorized to seize all records, information, and data described above in Section I, but limited to the subjects described below, that constitute evidence of one or more of the following federal offenses: [ ] 18 U.S.C. §§ 371, 1349 (conspiracy); 18 U.S.C. § 1341 (mail fraud); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. §§ 1956, 1957 (money laundering); 18 U.S.C. § 1031 (major fraud against the United States); and 18 U.S.C. § 1028A (aggravated identity theft). Such records, information, and data must pertain to one or more of the following subjects:
Following the colon are 10 bullet-pointed subject matter categories. At the hearing in this matter, the Government explained that it has created a filter team of agents who are provided a five-page list of search terms that ensures that information in any email that is covered by the attorney-client privilege does not reach the prosecution team. The Government further advised that while the Sixth Circuit has yet to recognize the clergy-communicant privilege, the Government is also prepared to filter emails that would come within the privilege.
III. LAW & ANALYSIS
Movants argue that the Google search warrant is a general search warrant prohibited by the Fourth Amendment because it makes no effort to limit disclosure of email communications to suspected [ ] fraud involving [the institution]. The Government counters that Movants lack standing to challenge the search warrant at this time, thus the instant motion should be denied on this basis alone. The Government further argues that even if the Court proceeds to address the merits of Movants' present motion, their motion should be denied because the warrant is not overbroad and is sufficiently particular to comport with the requirements of the Fourth Amendment.
A. Standing
The Stored Communications Act, Title II of the Electronic Communications Privacy Act of 1996 ("SCA"), 18 U.S.C. § 2701 et seq . governs the manner in which the government may obtain electronic evidence from Internet service providers ("ISP"), including emails. The SCA limits the government's ability to obtain "the contents of any wire or electronic communication" from any provider of "electronic communication service" or "remote computing service." 18 U.S.C. § 2703(a), (b).
Ordinarily, the government must obtain a search "warrant issued using the procedures described in the Federal Rules of Criminal Procedure ... by a court of competent jurisdiction" to obtain the contents of email accounts from internet service providers. 18 U.S.C. § 2703(a), (b)(1)(A) ; see also United States v. Warshak , 631 F.3d 266, 288 (6th Cir. 2010). Rule 41 of the Federal Rules of Criminal Procedure governs federal search warrants and requires probable cause for the search and seizure of evidence. See Fed. R. Crim. P. 41(d)(1) ; Warshak , 631 F.3d at 288 (finding that the government's failure to obtain a search warrant for a suspect's email communications violated the Fourth Amendment because the "government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause.")
While the SCA requires the government to provide notice to an ISP customer when the government obtains emails with a subpoena, it does not provide for a similar requirement when it obtains a search warrant for the same records. 18 U.S.C. § 2703(b)(1)(A) ; Compare id . § 2703(b)(1)(B). For this reason, at least one court has concluded that email subscribers have no basis upon which to challenge the execution of a search warrant. In In re June 1, 2017, Search Warrant for Email Accounts Hosted by Google , 17-MJ-70752 (N.D. Cal. Dec. 14, 2017), the court concluded that the SCA's failure to require the government to give notice to email subscribers prior to the execution of a warrant necessarily precludes such subscribers from challenging the warrant prior to its execution. Id. ("[I]f an email account holder is not entitled to know about the search's existence, the account holder clearly is not entitled to challenge that same search.").
Indeed, the SCA specifically provides subscribers the right to notice and to file a motion to quash a grand jury subpoena seeking the contents of electronic records, whereas a similar right is not set forth in the SCA's warrant provision. 18 U.S.C. § 2703(b)(1)(B) ; § 2704(b). This is because of the different requirements for obtaining a grand jury subpoena versus a search warrant. Unlike search warrants, grand jury subpoenas can be issued without judicial approval. The Supreme Court has held that the grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. R. Enterprises, Inc. , 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). The design and plain language of the SCA is clear that obtaining electronic evidence via a subpoena, which requires no judicial finding, must also include notice to the subscriber. Conversely, because a warrant requires a finding of probable cause by a neutral judicial officer, no notice is required prior to the warrant's execution.
Relying on the United States' brief before the Supreme Court in United States v. Microsoft, No. 17-2, Movants argue that SCA warrants "function as a subpoena." Movants claim that this is the exact argument advanced by the United States in the Microsoft case. Thus, since the two forms of process function similarly, Movants can challenge the Google warrant prior to its execution, just as it would if the Government had obtained a SCA subpoena.
In Microsoft , the ISP, and not the email account subscriber, challenged whether it was required to disclose contents of an email account that it had migrated to its datacenter overseas. See Id. at 6-7. The Microsoft case had nothing to do with a subscriber's right to notice or standing to challenge a warrant. Rather, it concerned whether the ISP had to disclose electronic evidence held in another country. Moreover, in Microsoft , the Government was arguing about the similarities between executing a warrant versus executing a subpoena. Id. at 36 ("The execution of a Section 2703 warrant thus functions like the execution of a subpoena. With a subpoena, a court ‘may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.’ ") (citing Fed. R. Crim. P. 17(c) (1). The Microsoft case does not aid Movants' position.
Moreover, the issue in Microsoft became moot after the CLOUD Act was signed into law as part of the Consolidated Appropriations Act, 2018, Pub. L. 115-141. ––– U.S. ––––, 138 S.Ct. 1186, 1187, 200 L.Ed.2d 610 (2018). The CLOUD Act amended the SCA to require service providers to disclose contents of electronic communications within their control whether or not the information was "within or outside of the United States." Id. at 1188. More importantly for the purposes of the issue before this Court, the CLOUD Act also amended the SCA to authorize a service provider that is required to disclose electronic contents pursuant to legal process to file a motion to quash the legal process when the provider reasonably believes the subscriber "is not a United States person and does not reside in the United States; and ... that the required disclosure would create a material risk that the provider would violate the laws of a qualifying foreign government." Consolidated Appropriations Act, 2018, Pub. L. 115-141. The CLOUD Act did not bestow a similar right upon a customer to move to quash legal process seeking the electronic contents of his accounts maintained by the ISP.
Movants also argue that other courts have permitted subscribers to move to quash an SCA warrant. See In the Matter of the Search of Information Associated with Four Redacted Gmail Accounts , 371 F.Supp.3d 843 (D. Or. 2018) ; Matter of Search of Info. Assoc. With Staceypromrenke@gmail.com Located at Google, Inc ., No. 1:16MJ00073, 2016 WL 9752136, at *4 (W.D. Va. Jun. 21, 2016). However, standing was never addressed in any of these decisions.
For instance, In the Matter of the Search of Information Associated with Four Redacted Gmail Accounts , the court failed to address the standing issue. 371 F.Supp.3d at 845-46. Instead, it addressed the merits of the warrant and determined that the Ninth Circuit's "seize first, search second" approach to warrants seeking electronic evidence was outdated, which is an approach currently approved by the Sixth Circuit Court of Appeals, as well as authorized by Federal Rule of Criminal Procedure 41, which is discussed infra. Id . The Four Redacted Email Accounts court ultimately determined that the warrant was overbroad because it did not limit the time period to the time frame that probable cause existed. Id. This Court will address the merits of the Movants' argument infra; however, the Court notes that the Google warrant at issue herein limits the time period to be searched to only the [ ] years under investigation. Similarly, the court in the Western District of Virginia skipped altogether whether the subscriber had standing to quash the warrant and addressed the merits of the warrant to conclude that it was not overbroad. 2016 WL 9752136, at *3-5.
Movants reliance on Matter of Search of Content that is Stored at Premises Controlled by Google , No. 16-MC-80263-LB, 2017 WL 1487625, at *4 (N.D. Cal. Apr. 25, 2017) and In re: Two email accounts stored at Google, Inc ., No. 17-M-1235, ECF No. 4., 2017 WL 11511603 (E.D. Wi. Mar. 9, 2017) is misplaced for the same reason as Microsoft does not support their case. Similar to the case in Microsoft , these cases involve the ISP moving to quash a warrant seeking electronic data. These cases also do not support Movants' argument that they have standing to challenge the warrant ex ante .
Contrary to Movants' assertion, they also have no standing to challenge the Google warrant under the Fourth Amendment. See United States v. Grubbs , 547 U.S. 90, 99, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). In Grubbs , the Supreme Court explained that the Constitution protects people by requiring "ex ante, the ‘deliberate, impartial judgment of a judicial officer’ ... and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages." Id.
In applying the holding in Grubbs to search warrants for emails, courts have concluded that the Fourth Amendment does not provide "a chance to litigate the validity of a warrant before that warrant has been executed by the government." In re June 1, 2017, Search Warrant for Email Accounts Hosted by Google , 17-MJ-70752 (N.D. Cal. Dec. 14, 2017); see also In re Information Associated with E-Mail Account [redacted]@ gmail.com , No. 14-M-1233 (E.D. Wis. Jul. 29, 2014) (" Grubbs suggests that so long as the warrant was validly issued, a target's recourse lies in a post-execution challenge.")
Based on the foregoing, the Court concludes that Movants lack standing to challenge the Google warrant ex ante and their Motion to Quash will be denied.
B. Scope of the Search Warrant
Even if Movants have standing to challenge the Google warrant ex ante , the warrant is not overbroad and is sufficiently particular and does not contravene the Fourth Amendment. The Fourth Amendment requires warrants to "particularly describe the place to be searched, and the persons or things to be seized." U.S. Const. amend IV. "A general order to explore or rummage through a person's belongings is not permitted. The warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized." United States v. Savoy , 280 F. App'x 504, 510 (6th Cir. 2008). The degree of specificity required for the particularity requirement "is flexible and will vary depending on the crime involved and the types of items sought." Hanna , 661 F.3d at 286. A warrant is "sufficiently particular if it is specific as to the circumstances and the nature of the alleged crime permit." United States v. Logan , 250 F.3d 350, 365 (6th Cir. 2001).
Movants argue that the Google warrant is overbroad because of the seven-year time period that is subject to search, specifically January 1, 2009 through January 31, 2016. Movants claim this "limit of more than seven years is so long as to be meaningless." Dkt. No. 13 at Pg ID 265. Movants' argument is unpersuasive. The Sixth Circuit has held that a warrant limited to the time period when criminal activity took place was sufficiently particular to target the evidence that was the subject of the government's investigation. See United States v. Hanna , 661 F.3d 271, 287 (6th Cir. 2011) (concluding that the warrant was sufficiently limited to target items involved in the criminal conduct based in part on the fact that the warrant sought email communications "only during the time period ... the activity occurred—between 2001 and 2004.")
Here, the Government is investigating a conspiracy to defraud the U.S. [ ] beginning in [ ] 2008-2009 [ ] and continuing through [ ] 2016. The seven-year time span is based on the scope of the investigation. This fact distinguishes this case from In re Search of Information Associated with Four Redacted Gmail Accounts because the warrants in that case contained no date restriction. 371 F.Supp.3d 843. The Court finds that the seven-year time frame covered by the warrant is sufficiently particular and limited to the scope and nature of the Government's investigation and does not provide a basis to quash.
Movants also complain that the Google search warrant makes no effort to limit the disclosure of emails to communications relevant to [the] suspected [ ] fraud involving [the institution]. Contrary to Movants' argument, Part II of Attachment B limits the scope of the warrant to subjects for which there is probable cause. Specifically, part II states in relevant part:
II. Information to be Seized by the Government
The government is authorized to seize all records, information, and data described above in Section I, but limited to the subjects described below, that constitute evidence of one or more of the following federal offenses: [ ] 18 U.S.C. §§ 371, 1349 (conspiracy); 18 U.S.C. § 1341 (mail fraud); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. §§ 1956, 1957 (money laundering); 18 U.S.C. § 1031 (major fraud against the United States); and 18 U.S.C. § 1028A (aggravated identity theft). Such records, information, and data must pertain to one or more of the following subjects:
Following the colon are 10 bullet-pointed subject matter categories.
Attachment B contains the two-step protocol approved by many federal courts for the execution of search warrants for emails. See In re Warrant for All Content and Other Information Associated with the Email Account xxxxxxx@gmail.com , 33 F. Supp.3d 386, 396 (S.D.N.Y. 2014) (approving of the two-step protocol "require[ing] that Google deliver all emails in the account to the Government for the purpose of allowing the Government to search the emails for items within the categories specified in the warrant."). In reaching its decision to uphold the constitutionality of the two-step protocol with respect to seizing all the data in an email account, the district court for the Southern District of New York explained that "[n]otably, every case of which [this court is] aware that has entertained a suppression motion relating to the search of an email account has upheld the Government's ability to obtain the entire contents of the email account to determine which particular emails come within the search warrant." Id. at 394.
While the Sixth Circuit Court of Appeals has not had occasion to review the constitutionality of the two-step protocol with respect to the seizure of all the data in an email account, it has approved of the two-step protocol in connection with a search warrant authorizing the seizure of a defendant's computers. See United States v. Evers , 669 F.3d 645, 652 (6th Cir. 2012). The Evers court affirmed the district court's conclusion that the officers were lawfully permitted to seize the defendant's computer and search its hard drive for illegal images. Id. at 653. The Evers court noted that "federal courts are in agreement that a warrant authorizing the seizure of a defendant's home computer ... for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing" in the warrant demonstrates "a sufficient chance of finding some needles in the computer haystack." Id. at 652 (internal quotation marks and citations omitted); see also Guest v. Leis , 255 F.3d 325, 335 (6th Cir. 2001) ("Because of the technical difficulties of conducting a computer search in a suspect's home, the seizure of the computers, including their content, was reasonable in [this] case[ ] to allow police to locate the offending files.").
The Court notes Movants' argument that Rule 41(e)(2)(B) of the Federal Rules of Criminal Procedure does not permit "the seize first, search second" scheme for the disclosure of all data in an email account. However, the cases relied upon by Movants rested their decisions on the fact that the search warrant had no temporal limitations, and not based on the conclusion that Rule 41(e)(2)(B) does not authorize "the seize first, search second" protocol. See Gmail Accounts , 371 F.Supp.3d at 845 ; In the Matter of the Search of Google Email Accts. Identified in Attach. A , 92 F. Supp.3d 944, 946 (D. Alaska 2015) ; In re Redacted@gmail.com , 62 F. Supp.3d 1100, 1104 (N.D. Cal. 2014) ; U.S. v. Matter of Search of Info. Assoc. with Fifteen Email Addresses , No. 2:17-CM-3152-WC, 2017 WL 4322826, at *7, 11 (M.D. Ala. Sept. 28, 2017).
Contrary to Movants' argument, Rule 41 specifically permits the type of searches of electronically stored information at issue here. Rule 41(e)(2)(B) states in relevant part that:
(B) Warrant Seeking Electronically Stored Information . A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure of copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant.
Fed. R. Crim. P. 41(e)(2)(B). The Advisory Committee Notes state that "[c]omputers and other electronic storage media commonly contain such large amounts of information that it is often impractical for law enforcement to review all of the information during the execution of the warrant at the search location." Fed. R. Crim. P. 41(e)(2)(B) advisory committee notes. The Notes further advise that the term "electronically stored information" is drawn from Rule 34 of the Federal Rules of Civil Procedure. The Advisory Committee Notes for Rule 34(a) specifically reference email as a type of electronically stored information subject to disclosure. See Fed. R. Civ. P. 34(a) advisory committee's note (" Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as email."). Therefore, Movants erroneously argue that Rule 41(e)(2)(B) does not encompass "the seize first, search second" protocol for email data.
Moreover, the two-step protocol has been approved by numerous federal courts with respect to search warrants for emails. See, e.g., United States v. Sealed Search Warrant, 17-CR-103, 2017 WL 3396441, at *2-3 (N.D. Ala. Aug. 8, 2017) ; United States v. Patel , No. 16-CR-798, 2017 WL 3394607, at *3-4 (S.D.N.Y. Aug. 8, 2017) ; United States v. Henshaw , No. 15-00339-01-CR, 2017 WL 1147494, at *1 (W.D. Mo. Mar. 27, 2017) ; In re Search of Information Associated with Email Addresses Stored at Premises Controlled by the Microsoft Corporation , 212 F. Supp.3d 1023, 1034-35 (D. Kan. 2016) ; United States v. Harder , No. 15-CR-001, 2016 WL 7647635, at *3-4 (E.D. Pa Apr. 18, 2016) ; United States v. Lee , No. 14-CR-227, 2015 WL 5667102, at *3 (N.D. Ga. Sep. 25, 2015) ; United States v. Scully , 108 F. Supp.3d 59, 91-95 (E.D.N.Y. 2015) ; In re Search of Information Associated with [redacted]@mac.com, 13 F. Supp.3d 157, 164-65 (D.D.C. 2014).
It is noteworthy that courts that have denied a search warrant seeking the entire communications of an email account or suppressed evidence based on an overbroad search warrant have determined that the warrant lacked particularity because it either failed to identify a specific date range or failed to reference a violation of a specific statute. See Gmail Accounts , 371 F.Supp.3d at 845–46 ; In the Matter of the Search of Google Email Accts. , 92 F. Supp.3d at 946 ; In re Redacted@gmail.com , 62 F. Supp.3d at 1104 ; U.S. v. Matter of Search of Info. Assoc. with Fifteen Email Addresses , 2017 WL 4322826, at *7, 11. None of these problems are present in the Google warrant at issue here.
Here, the Government is investigating a sophisticated, $50 million-dollar fraud scheme spanning a period of more than seven years. Attachment B specifically references the data that is subject to seizure. Namely, the subject areas include any evidence of wire fraud, mail fraud, conspiracy, aggravated identity theft, [major fraud against the United States] and money laundering. The warrant leaves no room for agents to go outside the boundaries set forth in the warrant. Further assurance that items not subject to seizure will not be seized stems from the Government's filter team and its system of filtering emails to exclude communications unrelated to the [ ] scheme. Moreover, the warrant application included a detailed application setting forth the fraudulent scheme and provided ample probable cause that evidence of this scheme would be found in the Movants' email accounts.
Due to the complex nature of the investigation, it is sufficiently particular for the warrant to permit seizure of items related to the criminal statutes identified in Part II of Attachment B within the context of the [ ] scheme. The Sixth Circuit has upheld a warrant against a particularity challenge where the warrant required that communications and records seized pertain to the listed offenses. See Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001). The Guest court reasoned that law enforcement "could not have obtained more specific identification of e-mails and subscriber data, which were not accessible to them." Id. Similarly, the Government does not know all the specific players and mechanisms used to facilitate the fraud scheme under investigation. Thus, the Google warrant is sufficiently particular under the Fourth Amendment.
IV. CONCLUSION
Accordingly, for the reasons articulated above, Movants' Motion to Quash Google Search Warrant [#13] is DENIED.
SO ORDERED.