At the WaPo Conspiracy, Orin Kerr has been deconstructing an order by D.C. Magistrate Judge John Facciola for the search and seizure of email and social media accounts that, after concluding there was no probable cause, refused a warrant because he held none was needed. Jeff Gamso explained why that was disturbing.
Orin has continued dissecting Mag. Facciola’s order, and come down to a very curious “strong suggestion” about how a warrant for emails should be executed:
[T]his Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government’s demand that it be given everything, the government leaves the Court with only two options: deny the warrants — thus depriving the government of needed information — or issue warrants that are repugnant to the Fourth Amendment. Neither is viable.
In other words, rather than let the government rummage through a customer’s account at Google, where his gmail emails are held on a server down the hall from the juice bar, make Google do it. No mention is made of whether the government ought to give the Googlers cool Deputy Dog badges to wear while they search on the government’s behalf. Why?
[D]espite any government protestation, a subpoena served on a third party, such as a bank, compels that entity to look within a record set for the particular documents sought. E-mail providers like Apple are technologically sophisticated actors; in fact, one of Apple’s main competitors, Google, has created an entire business model around searching the contents of e-mail in order to deliver targeted advertising, and it has done so for a decade.
Certainly, the government wants to do its own searches for its own reasons. After all, it would net them far more info if they get to read 10,000 unrelated emails in order to find the three that contain the evidence for which the search is authorized, which is the problem Mag. Facciola is seeking to avoid. If Googlers come back with “nope, we found nothing,” the government wouldn’t believe them anyway, and would just want to search themselves.
Note how Google’s ability to sift through every bit of our electronic data to “deliver targeted advertising,” which we all so greatly adore and is so incredibly effective at getting us to buy stuff, is used to justify the efficacy of the idea. After all, if they think they can target us for a new tchotchke, why not search for conspiracies? Same thing, different letters.
As Orin points out, there are some notable holes in Mag. Facciola’s understanding of how digital things work.
First, Judge Facciola’s belief that Internet providers can readily do the screening work to execute warrants strikes me as highly unpersuasive. Internet providers aren’t and shouldn’t be trained law enforcement officers, so they will have no idea how to find the evidence. To the extent Judge Facciola has a different view, I think he doesn’t fully appreciate the difficulty of executing warrants for electronic information.
Imagine the e-mail account has 20,000 e-mails, and the warrant is for records of illegal kickbacks and conspiracy. How is Apple supposed to find that evidence? Do they do a search for “kickback” and “conspiracy” and call it a day? Do they read each e-mail multiple times, looking for patterns, code words, and hints of illegality? Apple could have an employee search for five minutes or five months: Which does the Fourth Amendment require? When does the government know that the account has been sufficiently searched?
Ironically, this is how the e-discovery works, and it suffers from the same flaws, but that’s just an aside. Orin’s second problem is that there is old law, Zurcher v. Stanford Daily, that allows the government to execute warrants on innocent third parties, like our old pal Google.
[I]t is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of crime and is subject to arrest. And . . . it is difficult to understand why the Fourth Amendment would prevent entry onto [a third party's] property to recover evidence of a crime not committed by them but by others. As we understand the structure and language of the Fourth Amendment and our cases expounding it, valid warrants to search property may be issued when it is satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises. The Fourth Amendment has itself struck the balance between privacy and public need, and there is no occasion or justification for a court to revise the Amendment and strike a new balance by denying the search warrant in the circumstances present here and by insisting that the investigation proceed by subpoena duces tecum, whether on the theory that the latter is a less intrusive alternative or otherwise.
To lay this out, if the government has probable cause to believe Joe’s gmail contains evidence of a crime and obtains a warrant to seize and search it, and Joe’s gmail is held on Google’s servers on its lovely Mountain View campus, down the hall from the juice bar, it can obtain a warrant, gas up the tank, and send its SWAT Team (hey, you never know when those nerds will throw empty Red Bull cans at the agents) to raid Google.
By the way, it could take days, maybe weeks, to go through all the data before being sure they’ve exhausted the search. If I was running Google, I would order more nap pods. And in the meantime, don’t think Googlers will be allowed to maintain their servers, as they could destroy evidence. You never know.
Ridiculously far-fetched? For the moment, sure, and nobody would take a tank to Google’s campus when they can ride bikes. But the notion that existing law permits the execution of search warrants at third-party premises, and that the “evidence” in the digital age is almost invariably held by third parties, presents some huge dilemmas for companies like Google and Apple. And for everyone who uses their services.
Are the options really limited to deputizing Googlers as government functionaries, or allowing government agents to overrun tech companies? On the bright side, it’s better for the target than having agents cut open the couch cushions just in case you hid an email in there.