In re Search of Info. Associated With [Redacted]@mac.com

• Decision Date: 07 August 2014
• Docket Number: Magistrate Case No. 14–228
• Citation: 13 F.Supp.3d 157
• Parties: In the Matter of the Search of Information Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc.
• Court: U.S. District Court — District of Columbia

13 F.Supp.3d 157

In the Matter of the Search of Information Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc.

Magistrate Case No. 14–228

United States District Court, District of Columbia.

Signed August 7, 2014

Filed August 8, 2014

L. Wade Weems, United States Department of Justice, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief Judge

The government challenges an order by Magistrate Judge John M. Facciola denying its second application for a search warrant under § 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 –12. The magistrate judge denied the government's application on the ground that the requested warrant amounted to an unconstitutional general warrant due, in large part, to the procedures set forth in the application for executing the requested warrant. Following the magistrate judge's denial of the search warrant application and the government's subsequent challenge to that decision, the Electronic Frontier Foundation moved for leave to file an amicus brief. Because the government's application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge's order will be vacated, and the government's application for a search warrant will be granted.

BACKGROUND

On March 5, 2014, the government filed under 18 U.S.C. § 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 –2712 a sealed application for a search warrant for electronic communications and other evidence stored on a computer.¹ The government's search warrant application related to a specific email account, [redacted]@mac.com, and involved alleged violations of 41 U.S.C. § 8702 (kickbacks) and 18 U.S.C. § 371 (conspiracy). The government's application included an affidavit in support of the search warrant providing factual information to support a finding of probable cause.² In addition, the government's application included two attachments that set forth the place to be searched and the particular items that the government intended to seize, including specific information that the electronic service provider, Apple, Inc., would be required to disclose. See Govt.'s Application for a Search Warrant (“Govt.'s Application”), Attach. A, Place to Be Searched at 1; Govt.'s Application, Attach. B, Particular Things to Be Seized by the Government at 1. The magistrate judge denied the government's application for a search warrant in part because the application failed to clearly indicate that Apple was required to disclose e-mails in particular, and because probable cause had not been established for all of the emails requested in the search warrant. In Re: Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., Mag. Case No. 14–228(JMF), –––F.Supp.2d ––––, –––– – ––––, 2014 WL 945563, at *2–3 (D.D.C. Mar. 7, 2014). In addition, the magistrate judge objected to the government's use of Rule 41(e)'s “two-step procedure”³ for gathering evidence whereby Apple would first be required to disclose to the government all e-mails associated with the target e-mail account, and then, at a later point, the government would examine the e-mails at separate location to identify evidence specified in Attachment B to the government's application. Id. at –––– – ––––, 2014 WL 945563, at *5–6.

The government filed a second application for a search warrant on March 28, 2014. In the revised application, the government indicated that the warrant applied to the e-mail account for “[redacted]@mac.com,” and that the warrant covered “information ... dating from January 14, 2014, to the present, and stored at premises controlled by Apple Inc.” Govt.'s Application for a Search Warrant (“Govt.'s 2d. Application”), Attach. A at 1. Attachment B set forth further details on the particular items to be seized, which included the following records:

All e-mails, including e-mail content, attachments, source and destination addresses, and time and date information, that constitute evidence and instrumentalities of violations of 41 U.S.C § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy), dated between January 14, 2014, to the present, including e-mails referring or relating to a government investigation involving any or all of the following: [individuals and entities have been redacted].

Id. Attach. B at 1. Attachment C to the government's revised application included the specific procedures for executing the search warrant wherein the government would first “conduct a search of the e-mails produced by the Provider and determine which are within the scope of the information to be seized specified in Attachment B,” and then copy and retain those emails that are “within the scope of Attachment B.” Id. Attach. C at 1. Law enforcement personnel would then “seal any information from Apple that does not fall within the scope of Attachment B,” and would be prohibited from “further review [of] the information absent an order of the Court.” Id.

The magistrate judge rejected the government's revised application for a search warrant in a second memorandum opinion. In Re: Search of Info. Associated with [Redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., Mag. Case No. 14–228(JMF), 13 F.Supp.2d 145, 2014 WL 1377793 (D.D.C. Apr. 7, 2014). Reiterating the rationale set forth in the first memorandum opinion, the magistrate judge again denied the government's application for a search warrant finding that it violated the Fourth Amendment because it amounted to an overly broad search warrant. Id. at 148–50, 152–53, 2014 WL 1377793, at *2–3, *5. In addition, the magistrate judge rejected the government's use of the two-step procedure under Rule 41(e), stating that the government was “ ‘abusing the two-step procedure under Rule 41 ’ by requiring Apple to disclose the entire contents of an e-mail account.” Id. at 153, 2014 WL 1377793, at *5 (quoting In Re: Search of Info., Mag. Case No. 14–228(JMF), ––– F.Supp.2d at ––––, 2014 WL 945563, at *5 ). To avoid issuing a general warrant that would permit the government to seize large amounts of data not supported by probable cause, the magistrate judge recommended that Apple perform the necessary search and turn over any relevant information to the government. Id. at 153–54, 2014 WL 1377793, at *6.

The government filed a challenge⁴ to the magistrate judge's order on April 21, 2014, seeking review of the magistrate judge's decision denying the application for a search warrant. In its challenge, the government argues that the application for search warrant complies with the Fourth Amendment. Govt.'s Resubmission or Appeal from Mag. J.'s Order Denying Application for Search Warrant (“Govt.'s Challenge”) at 5–7. In addition, the government argues that the two-step procedure for executing the search warrant is permitted under Federal Rule of Criminal Procedure 41. Id. at 8–13.

On May 2, 2014, the Electronic Frontier Foundation (“EFF”) filed a motion for leave to file a brief as amicus curiae in order to address pertinent questions involving the Fourth Amendment and new technologies. Mot. for Leave to File Brief Amicus Curiae of Elec. Frontier Found. at 1.

DISCUSSION

I. STANDARD OF REVIEW

Under the Stored Communications Act, the government may apply for a warrant requiring an electronic service provider to disclose the contents of electronic communications, or other records and information, from a “court of competent jurisdiction.” 18 U.S.C. §§ 2703(a), (b)(1)(A), (c)(1)(A). The statute defines a court of competent jurisdiction as “any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that ... has jurisdiction over the offense being investigated.” Id. § 2711(3)(A)(i). Here, the basis for the magistrate judge's jurisdiction is the Federal Magistrates Act, 28 U.S.C. §§ 631 –639. The Federal Magistrates Act provides magistrate judges with authority to decide certain pre-trial matters, including whether to grant search warrant applications.⁵ Id. § 636(b)(1)(A). A “judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court,” provided that the matter does not fall within one of the enumerated exceptions set forth in the subsection (b)(1)(A).⁶ Id. “A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” Id. ; see also Gomez, 490 U.S. at 868, 109 S.Ct. 2237. Accordingly, the magistrate judge's order denying the government's application for a search warrant under 18 U.S.C. § 2703 will be reviewed to determine whether it is clearly erroneous or contrary to the law.⁷

II. FOURTH AMENDMENT

The Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is reasonableness.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (internal quotation marks omitted). “Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing ... reasonableness generally requires the obtaining of a judicial warrant.” Id. at 653, 115 S.Ct. 2386. The Supreme Court has interpreted the Fourth Amendment to require: (1) that the warrant be issued by a neutral magistrate; (2) that the neutral magistrate find that there is probable cause to believe that the evidence sought will “ ‘aid in a particular apprehension or conviction’ for a particular offense;” and (3) that the warrant describes with specificity the “ ...