In re Search of Records, Info., & Data Associated With 14 Email Addresses Controlled by Google, LLC

• Decision Date: 04 February 2020
• Docket Number: Case No.: 18-mc-50318
• Citation: 438 F.Supp.3d 771
• Parties: IN RE SEARCH OF RECORDS, INFORMATION, AND DATA ASSOCIATED WITH 14 EMAIL ADDRESSES CONTROLLED BY GOOGLE, LLC.
• Court: U.S. District Court — Eastern District of Michigan

438 F.Supp.3d 771

IN RE SEARCH OF RECORDS, INFORMATION, AND DATA ASSOCIATED WITH 14 EMAIL ADDRESSES CONTROLLED BY GOOGLE, LLC.

Case No.: 18-mc-50318

United States District Court, E.D. Michigan, Southern Division.

Signed February 4, 2020

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.¹ 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.

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...