New York Judge OKs Warrant To Search Entire Gmail Account

jfruh writes While several U.S. judges have refused overly broad warrants that sought to grant police access to a suspect's complete Gmail account, a federal judge in New York State OK'd such an order this week. Judge Gabriel W. Gorenstein argued that a search of this type was no more invasive than the long-established practice of granting a warrant to copy and search the entire contents of a hard drive, and that alternatives, like asking Google employees to locate messages based on narrowly tailored criteria, risked excluding information that trained investigators could locate.

Comments

Warrants are supposed to be narrow

[sjbe]

lternatives, like asking Google employees to locate messages based on narrowly tailored criteria, risked excluding information that trained investigators could locate.

Ummm, isn't that PRECISELY the point? If the search criteria isn't sufficiently broad to catch someone then that means they don't have enough evidence to be conducting the search in the first place. Almost everyone can be found guilty of some illegal activity (however minor) if the search parameters are sufficiently broad.

Re:Warrants are supposed to be narrow

[Sarten-X]

Ummm, isn't that PRECISELY the point?

No. The point of the fourth amendment is to prevent investigators from harassing people looking for reasons to prosecute and persecute.

What seems to be happening here is that there is already evidence enough to justify a search, but the details are not specific enough to be able to ask someone else to execute it. As a physical analogue, there's enough evidence to search a house for a murder weapon, but the investigators don't know it's taped to the bottom of the third dresser drawer. In the case of email, I'd expect the investigators don't know all aliases that might have been used, or in what timeframe the relevant emails might have been sent.

Re:Warrants are supposed to be narrow

[Richard_at_work]

How does this differ from a typical search warrant for a premises? While you can get a search warrant to search "room X at property Y", more often than not the search warrant is for "property Y", which is exactly the same as a gmail account in entirety.

Re:Warrants are supposed to be narrow

[Brulath]

The New York court, in contrast, granted on June 11 a warrant that permitted law enforcement to obtain emails and other information from a Gmail account, including the address book and draft mails, and to permit a search of the emails for certain specific categories of evidence.

They only have permission to search for certain specific categories of evidence, despite having the entire archive, so they wouldn't be able to find them guilty of some minor illegal activity unless it was part of the specific categories the judge authorised.

Have you ever tried to find something in your email account that you know is there but couldn't locate it using any search terms that came to mind, only to find it later along with something completely unrelated? How hard do you think it would be to describe to a Google employee the type of information you want them to search for in (likely) thousands of emails and get a perfect success rate (assuming, perhaps incorrectly, that that's the only satisfactory outcome)?

Responding to the opinion by the District of Columbia court that gave the government the option of getting the email host to search the emails, Judge Gorenstein wrote that Google employees would not be able to arrive at the significance of particular emails without having been trained in the substance of the investigation.

"While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so," he wrote.

It seems to be the same thing, to me. So we have limitations to the type of evidence that may be acquired, and the ability to find that evidence using people with intimate knowledge of the case (as opposed to a corporation's employee).

I don't get the fuss, it's not like you have some right to hide suspected (they got a warrant) illegal activities just because they're recorded in an email archive stored somewhere other than your computer's hard drive. The only problem I have with it could be described as a slippery slope fallacy; that is, maybe the rules will become more relaxed over time as more judges build on this case. But that's somewhat pointless speculation at this point; this judge seems to be quite sane.

Re:Warrants are supposed to be narrow

[Sockatume]

A better analogy would be "we have enough evidence to justify a search, but we don't know whether the murder weapon is a gun, a knife, a potato, or a window, so we're going to be keeping an exact record of every single object in the house".

Re:Warrants are supposed to be narrow

[Sarten-X]

Could be. If several witnesses see an assailant bludgeon someone on the sidewalk with an obscured object, then run into a house, the police may not be able to ascertain exactly what the weapon is, but they'd certainly have enough evidence for a search, and they could keep a record of any potential weapons seen in the house in case forensics can later get them a better description of the weapon used. As in this case, they'd have to get as narrow a warrant as possible, specifying that they're searching for the weapon and not, say, evidence of tax fraud. Of course, if they found readily-visible evidence of such fraud during the course of the authorized search, they are not required to ignore it.

Re:Warrants are supposed to be narrow

[Sarten-X]

The investigation is for money laundering. It's not hard to imagine setting up a laundering channel months or years in advance, by conspiring with someone to accept a transfer of money and forward it on to some other conspirator.

Re:Warrants are supposed to be narrow

[David_Hart]

I imagine searching an entire hard-drive would be broad enough to catch most /. users.

I am not a lawyer but as far as I know, search warrants are tied to a specific crime. Any evidence of any other crime is inadmissible in court. Of course, if investigators stumbled on evidence of something like terrorism your still likely to end up in Gitmo.

Re:Warrants are supposed to be narrow

[Dishevel]

But they are not asking for evidence of anything. They are asking for everything. This type of search allows "Search First, the find something to bust you on." That is bad.

Re:Warrants are supposed to be narrow

[Jane Q. Public]

Could be. If several witnesses see an assailant bludgeon someone on the sidewalk with an obscured object, then run into a house, the police may not be able to ascertain exactly what the weapon is, but they'd certainly have enough evidence for a search, and they could keep a record of any potential weapons seen in the house in case forensics can later get them a better description of the weapon used.

I don't think the question is really whether the judge can order such a thing. I think it's more of a question of whether it is justified in this case.

GP made a very good point. Search warrants are required to be particular, and to specify the particular thing(s) being searched for. If they don't know what they're looking for, broadening the search to turn it into a "fishing expedition" is not allowable.

The general principle is that the search should be as narrowly focused on particular evidence as can practically be managed. Is that the case here? It doesn't seem to be, but I'm not the judge, I don't know the details.

Re:Warrants are supposed to be narrow

[nabsltd]

The general principle is that the search should be as narrowly focused on particular evidence as can practically be managed. Is that the case here? It doesn't seem to be, but I'm not the judge, I don't know the details.

I suspect the issue might be that a list of keywords (and synonyms) that would be reasonable in a money laundering case might be so large as to make a global retrieval seem reasonable. And, paring back the list of words might miss something important.

I see no harm whatsoever allowing a search through all the GMail of that one person for evidence concerning money laundering, with evidence of any unrelated crimes (e.g., admission to a murder of a spouse because they were sleeping with someone else) not being admissible.

Re:Warrants are supposed to be narrow

[Sarten-X]

It always seems like you're on the side of the government, whether it's the NSA or what have you.

Often, yes. You see, I actually understand the design of the US government. It's built to continually revise and improve, and it's been doing so for over 200 years. On the other hand, your opinions have been forming for less than a century, and since you're only a single person, you've undergone far fewer revision cycles, all of which have been from a very limited perspective.

For example:

Also, any warrant asking to just search the entire house should be rejected, too.

Is that just, though? It may appeal to your sense of privacy, but would it appeal to your sense of justice to know that any criminal could effectively conceal evidence by simply putting it in a large enough box? How would your neighbors feel about it, knowing that you could be seen kidnapping their children, and the police could do nothing because they wouldn't know what room they're being held in?

Sure, the examples are hypothetical, but the underlying issue of deciding what is right predates your consideration by quite a long while. The best we have so far is a system where certain activities are absolutely permitted, and certain activities are absolutely forbidden, and deciding which category a given situation fits into falls to a judge whose primary interest is to bring the legal precedent closer to a state that everyone considers to be fair. It's not perfect, and likely will never be perfect, but it's closer than having Random Internet Guy simply decide that privacy trumps justice, because he says so.

Re:Warrants are supposed to be narrow

[lgw]

I don't think the question is really whether the judge can order such a thing. I think it's more of a question of whether it is justified in this case.

We lack the data to second-guess the judge's judgment. I'm elated by this story, personally. There was a judge; there was a warrant; that's amazing progress for email!

Re:Warrants are supposed to be narrow

[Warhawke]

That's not completely correct. The Fourth Amendment was enacted specifically to prevent writs of assistance, which were commonly used in Britain to give law enforcement officers broad, nearly unlimited power to conduct searches for contraband or smuggled goods. The Fourth Amendment was enacted to prevent law enforcement officers from having this broad power to search anywhere and everywhere, even if there was reasonable evidence of a crime.

Part of the danger of broad writs or warrants is that (1) they unduly invade a person's fundamental right to privacy, and (2) the adoption of the plain view exception to the exclusionary rule will make you liable for anything the police uncover, whether it's related to the crime being searched for or not. So if the police go searching your hard drives for child pornography and uncover evidence that you bought some pot from a friend via e-mail, that evidence can and will be used against you.

You are correct in that a search may be so broad as to search for evidence of the thing to be seized. However, the presumption is and should always be tailored as narrowly as possible. Simply saying that the police do not know where the gun is does not give the police powers to search any property the suspect owns. The police may search his house and anywhere in it, but the boundaries must be narrowly tailored so as to survive constitutional scrutiny. In the case of e-mail, any communications with people not directly implicated or otherwise material to the crime should be excluded, as there is relative certainty that material information will not be communicated with these parties (for example, you aren't going to find evidence of child pornography in my weekly Mint financial statement updates or newsletters I receive). As such, it is likely that the scope of this warrant is over-broad.

Re:Warrants are supposed to be narrow

[mysidia]

but they'd certainly have enough evidence for a search, and they could keep a record of any potential weapons seen in the house in case forensics can later get them a better description of the weapon used.

They wouldn't have probable cause to visit every apartment in the building and cease every blunt object in the house from every tenant and take it to the lab for analysis. And from the public there is a simple answer to this illegal search behavior.... Jury nullification. If this person comes before a jury charged with a crime, and I find out about this illegal search; I will almost certainly reach a finding of not guilty, regardless of the facts of the case.

Not a single citizen is required to tolerate an illegal unconstitutional search or assist in a law enforcement action tainted by such misbehavior of police and judges.

However, with a service such as Google there is a simple answer. Order them to preserve and not delete any e-mail for the user within the potential time frame

Then when they have enough evidence to specify the thing to be searched or the particular objects to be seized, without first conducting an illegal search, they will be able to get a legitimate warrant and inspect the preserved materials.

Re:Warrants are supposed to be narrow

[perceptual.cyclotron]

As in this case, they'd have to get as narrow a warrant as possible, specifying that they're searching for the weapon and not, say, evidence of tax fraud. Of course, if they found readily-visible evidence of such fraud during the course of the authorized search, they are not required to ignore it.

This is the one spot where I trip up a little, and have to wonder if we need slightly different protocols. How does the plain-sight doctrine work for digital media? In effect, every single email is equally 'visible'. The analogy to a house in the real world breaks down utterly here, and it's not clear how to fix that. What happens if they find emails with evidence of tax-fraud? Were those emails in plain sight? I agree that the scope is entirely reasonable for the necessary search – but I have to wonder how they would handle evidence of something they had no justification to search for? Law enforcement's penchant for parallel reconstruction (aka perjury) suggests they are very likely to use this information. Perhaps if it were understood that any future evidence brought for a different crime, and for which the defendant could demonstrate there was evidence within the email trawl, were assumed to be poisoned fruit, then we might have some better assurances. But there are some pretty obvious flaws with that kind of approach too...

Re:Warrants are supposed to be narrow

[HiThere]

The problem is that one agent of it under reckless evil can undo the work of 100 agents working selflessly for good. And that's assuming the "good" agents don't collude to protect the bad apple.

Re:Warrants are supposed to be narrow

[david_thornley]

Except that the warrant will allow for searching your house for missing Girl Scouts. The police searching cannot legally look anywhere too small to hold a very small Girl Scout, nor can they open photo albums or take them away.

Re:Warrants are supposed to be narrow

[kwbauer]

They specified that they are looking for emails containing information related to the specified crime. If they notice other crimes in the emails, then the defendant's lawyers should (as in the the law and Constitution should be so interpreted) be able to have that evidence dismissed as having been illegally obtained. That seems to be a reasonable way to deal with this as they shouldn't be treated as being in plain sight but the police do need to perform the search.

Well, it *is* consistent

[Anonymous Coward]

If it's okay to go through someone's locally-stored data, why not their remotely-stored data? It's not like there's a fundamental difference. If there were such a difference, then using the cloud would be a perfect "you can't get me" loophile.

Example of slippery slope

[Anonymous Coward]

Judge Gabriel W. Gorenstein argued that a search of this type was no more invasive than the long-established practice of granting a warrant to copy and search the entire contents of a hard drive, and that alternatives, like asking Google employees to locate messages based on narrowly tailored criteria, ....

So, if a judge years ago did not allow the searching of a hard drive, this judge wouldn't have anything to stand on.

See, when the cops are allowed to do something seemingly little, then it allows for something else seemingly little, and so on and so on.

Our freedoms and liberties are being chipped away everyday.

Back during the Bush admin when folks were cautioning about the increased Executive powers, they were labeled "UnAmerican", "Liberal" or some other non-sense. When it was pointed out that the next Administration would get those same powers - meaning a Democrat may get them (and did) - it went over their heads.

And then there are the folks who discount the "Slippery Slope" argument as a logical fallacy.

Well, here you go.

I am concerned as to how far this will go in the future. And I hope the ACLU and EFF is all over this.

Re:Example of slippery slope

[LordLimecat]

So, if a judge years ago did not allow the searching of a hard drive, this judge wouldn't have anything to stand on.

Or, the judge in this case would have set that precedent using the same reasoning that judge years ago did.

How narrow is the search?

[sjbe]

If it's okay to go through someone's locally-stored data, why not their remotely-stored data?

The question isn't local versus remote. The question is narrowly tailored search versus fishing expedition. If they have enough evidence to justify a search of someone's entire account (or local hard drive) then it shouldn't be hard to convince a judge to issue a warrant with those search parameters. However warrants should be as as narrowly defined as possible based on the available evidence. If you suspect someone of burglary that likely does not constitute sufficient grounds to search their hard drive (or google account) for in its entirety unless to police have specific and credible evidence to the contrary. Warrants are supposed to have the minimum necessary search parameters.

I'm not familiar with the particulars of this case but I can think of plenty of circumstances where it would be quite inappropriate to search someone's entire account. There are also circumstances where it is perfectly appropriate but the warrant should not be that broad without damn good reason.

Two sides to this...

[SailorSpork]

One one hand, I join in the mob rage that this warrant is obviously to broad / vague. On the other hand, as of 2014 in the US this data still need a search warrant to obtain. Let's see how this conversation goes in 2020. Maybe by then US will stand for Universal Surveillance.

Re:Two sides to this...

[HiThere]

You have a lot more faith in the integrity of the government than I do.

Stop copying hard drives too!

[MobyDisk]

no more invasive than the long-established practice of granting a warrant to copy and search the entire contents of a hard drive

This "long-established practice" has always been a violation of the 4th amendment. The recent case where the US government used hard drive data from a *different* case is proof that they should not do this. They should never get the entire hard drive contents. A neutral 3rd-party should copy the drive, perform an appropriate search, then erase the copy. There's no reason for the government to indefinitely hold copies of data they should never have had in the first place.

Just imagine if they had a warrant to get your address book, but they kept a copy of every piece of paper in your entire home, just in case it became relevant later. There is no way that would be allowed. But the digital equivalent is somehow acceptable.

Re:Stop copying hard drives too!

[Sarten-X]

A neutral 3rd-party should copy the drive, perform an appropriate search, then erase the copy.

The police are that neutral third party. Clearly they are not you, and they are also not the people who accuse you (or the prosecutor representing the people).

A large part of our justice system is focused on keeping them neutral. The fact that the investigators did not erase their copy, but rather retained it, is why the appeals court in that case reversed the judgement.

Re:Stop copying hard drives too!

[dagarath]

Police are not a neutral third party. They are paid by the same state that pays the prosecutor and the judicial system. Neutrality in that setting is legal fiction.

Re:" and particularly describing"

[LordLimecat]

You do realize that authorities have ALWAYS been able to "look in medicine cabinets and underwear drawers", if they had probable cause and were issued a warrant by the courts?

Yall need to go home, this isnt the "government overreach" story you're looking for.

Minimally invasive searches

[sjbe]

How does this differ from a typical search warrant for a premises?

It might not be any different. However even a warrant for a premises is not (supposed to be) without limits. If the information sought can be reasonably obtained through less intrusive means then it is supposed to be obtained through those alternative means. If the cops are interested in someones google account (or hard drive - same principle) because they have credible suspicion about information that may be contained there then a warrant is fine but only to the extent necessary to search for and safeguard the information sought.

Basically if the judge is saying that searching an entire account is appropriate merely because there is a chance investigators might miss something then there is a problem. The entire point of a getting judicial review prior to a search is so that searches do not become wider than absolutely necessary. Part of that is so that people don't become accused of crimes they otherwise would not have been under suspicion of. Giving carte-blanche to search someone's google account in many cases is opening up their entire life to a search so there had better be a damn good reason to permit a search that broad.

Re:Minimally invasive searches

[Anonymous Coward]

Any other crimes they find, they can't use. That is how warrants work. They are searching all of the person's email for content related to the crime they are investigating. Anything else, whether they see it or not, is inadmissible.

Currently not the biggest problem

[bickerdyke]

With several gouvernment agencies currently ignoring constitutional rights, specific warrents effecting specifically named persons, issued and overseen by judges, are NOT the biggest threat to privacy.

Limitations on law enforcement

[sjbe]

Have you ever tried to find something in your email account that you know is there but couldn't locate it using any search terms that came to mind, only to find it later along with something completely unrelated? How hard do you think it would be to describe to a Google employee the type of information you want them to search for in (likely) thousands of emails and get a perfect success rate (assuming, perhaps incorrectly, that that's the only satisfactory outcome)?

Law enforcement is not entitled to a perfect success rate. If they have evidence that justifies searching an entire account then fine but I defy you to come up with more than a handful of cases where such a blanket search is not a violation of the Fourth Amendment. We put limits on law enforcement because law enforcement has a LONG history of abusing power. The majority of the Bill of Rights is devoted to limiting the power of law enforcement. We put these limits in place knowing full well that the result will be that some guilty people go free because the alternative is to convict innocent people. The job of law enforcement is not supposed to be easy or convenient.

I don't get the fuss, it's not like you have some right to hide suspected (they got a warrant) illegal activities just because they're recorded in an email archive stored somewhere other than your computer's hard drive.

Strawman argument. The question is whether the warrant and the activities permitted are appropriately narrow to the circumstances. If they are then all is well. If the warrant allows a fishing expedition then it is an abuse of the judicial process. If the search criteria that can be justified is too narrow to result in information useful for a conviction then that is just too bad. If they don't have enough evidence to convince a (properly behaving) judge that a wider search is necessary then that is how the system is supposed to behave.

The only problem I have with it could be described as a slippery slope fallacy; that is, maybe the rules will become more relaxed over time as more judges build on this case.

It's not a slippery slope problem. The problem is that there is relatively little guidance on what the rules and parameters regarding these sorts of searches should be because the technology of online accounts has advanced somewhat ahead of the law. Could be that the warrant issued was perfectly appropriate to the circumstances. However the justification was given that "investigators might miss something" which is alarmingly insufficient. Yes, they might miss something and unless they have evidence to justify a very broad search then they should have to use less invasive means even if that means they might miss something. Better that 100 guilty men go free than a single innocent man be wrongly convicted. Searching someone's entire Google account is a very invasive search and there had better be a very good reason to allow it.

Re:" and particularly describing"

[Duhavid]

and the persons or things to be seized.

from what I have read, they do not specify the person or things to be seized except "everything".

In my mind, "No Check".

Re:As the old song goes

[sjames]

That's just it. Slippery slope is often NOT a fallacy. Anywhere where precedent is followed, such as law, permits a logical argument behind the slippery slope. Anything involving human psychology (boiling the frog) likewise.