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

[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

[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.

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.