In the en banc majority opinion, the name “Kerr” appeared 13 times. That’s why. The underlying dispute harkens back to the Magistrates’ Revolt, where some mags refused to sign off on warrants for computers because the government neglected to mention what they planned to do about the problem of all that evidence seized for which no probable cause existed, that failed to meet the particularity requirement.
Volokh Conspirator and computer crime scholar extraordinaire, Orin Kerr, argued that it fell under the most beloved of legal theories, “no harm, no foul.” (Yes, I’m being just a wee bit sarcastic here, Orin. Cut me a break, will ya?) His point was that there was no provision for the mags to look beyond whether probable cause existed, and whatever collateral problems arose from the excessive seizure could be remedied post hoc, when evidence came before the court after the search and seizure were done.
As an example of how this should, and actually does, work, he noted Judge Denny Chin’s opinion for the majority of the panel in United States v. Ganias.
The Second Circuit has handed down a very important new Fourth Amendment case, United States v. Ganias. In an opinion by Judge Chin, the court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant.
See? See??? And therefore:
As an aside, this decision is a good example of why ex ante search restrictions written into computer warrants by individual magistrate judges are not necessary. Under the Second Circuit’s decision, every computer warrant now has an ex ante search restriction written into it, by virtue of caselaw, prohibiting the indefinite retention of non-responsive files. Perhaps the introduction of more caselaw on the scope of computer warrants will make clear that reasonableness should be a matter for appellate decisionmaking ex post, not individual magistrate practices ex ante.
Even then, the argument failed to reach the top of my happy mountain.
But this is where the view of the trenches differs from a guy who holds a defendant’s hand to a guy who sits in an ivory tower. From up on high, the outcome of Judge Denny Chin’s decision makes everything good. After all, Ganias prevailed, equilibrium is restored to the universe and the stars have aligned. What’s not to like?
Ganias (though this really isn’t about Ganias, but about every target of a government investigation and prosecution), spent more than a decade unable to sleep at night. Unable to plan for his future, to commit himself to his work, his family, his future, because he had no idea when there would be a knock on the door in the early morning hours by guys with government shields who want to put him in cuffs.
Ganias spent a good deal of money, perhaps all he had, paying a lawyer to prevent that knock on the door in the early morning. That was money he could have spent on his children’s birthday presents, or college education, or on a romantic meal with his wife who stuck by him despite the omnipresent threat hanging over his head. Maybe he would have used it for a vacation. He certainly could have used a vacation.
There’s more, and I go on at length (as I sometimes do) about why solutions from 35,000 feet aren’t as benign when you’re in the trenches. But the government, miffed as all get out at Ganias’ win and anything remotely resembling a level playing field, went for en banc review, and the Second Circuit, being both accommodating and empathetic, gave it to them. Boom, Ganias gone.
After embracing the litany of how hard it would be for the government to comply with particularity in the age of computers, and somehow squinting really hard about the gap in time between the end of the justification for seizing Ganias’ computer and obtaining a second search warrant, this time for Ganias rather than one of his clients, and it was just pretty darn handy that they still have all the evidence in hand, even though they never should have had it at all. They can’t help it if they’re lucky.
Judge Chin, however, was no more impressed the second time around.
[E]nshrined in the Fourth Amendment is the foundational principle that the Government cannot come into oneʹs home looking for some papers and, without suspicion of broader criminal wrongdoing, indiscriminately take all papers instead.
In this case, the Government argues that when those papers are inside a computer, the result is different. It argues that when computers are involved, it is free to overseize files for its convenience, including files outside the scope of a warrant, and retain them until it has found a reason for their use. In essence, the Government contends that it is entitled to greater latitude in the computer age. I disagree. If anything, the protections of the Fourth Amendment are even more important in the context of modern technology, for the Government has a far greater ability to intrude into a personʹs private affairs.
It’s not that the en banc majority disputed the idea that computer hard drives contained vast amounts of information beyond that for which the warrant authorized seizure, or the government holding onto the entirety of the mirrored hard drive evidence for two and half years beyond the end of the investigation for which it was seized, just because. It’s that, by obtaining a second warrant, all evils magically disappear, because it was covered by the government’s “good faith.”
And lest you think this is merely a “too bad for you, Ganias, you criminal,” the ramifications are slightly broader.
We know only general descriptions of what was in Ganiasʹs three hard drives ‐‐ ʺpersonal and financial information,ʺ including information on other tax and accounting clients (e.g., social security numbers) that was private to them ‐‐ but the Fourth Amendment requires us to consider broadly the ramifications of computer seizures. If Ganias were a doctor, his computer might have contained the entire medical history of hundreds of individuals. If Ganias were a teacher, his computer could have contained educational information on dozens of students and communications with their families. If Ganias were not an individual but a corporation like Apple, Dropbox, Google, or Microsoft that stores individualsʹ information in the ʺcloud,ʺ the Government would have captured an untold vastness of information on millions of individuals.
Oops. That’s a lot of stuff you got there, Mr. G-Man. But of all the numbers that should be of grave concern here, the one that bothers me the most is 13.