Google Denies Narrow Warrant Request For Emails; Government Responds By Asking For Everything Ever

from the Plan-B-for-'British' dept

Thu, Mar 12th 2015 4:15am — Tim Cushing

Another participant in the Magistrate's Revolt appears out of the unlikeliest of districts: Alaska. The court order, first pointed out by ACLU's chief tech sorcerer, Chris Soghoian, features Judge Kevin McCoy telling the government to take its overly-broad search warrants and hit the road. Well, mostly. The order is without prejudice, which means the government still has options available, but from what's stated by the judge, it won't be the latest option the government deployed.

The case details are a bit thin. With the exception of this court order, the rest of the documents are under seal. It deals with an investigation of Craigslist ads allegedly soliciting sexual contact with minors. The ad was reported to authorities by a Craigslist user. Law enforcement officials detained the person who placed the ad, who then admitted to being in possession of child porn, as well as being interested in sexual relations with children.

With the perp nailed down, law enforcement went after those who answered the ad. A subpoena turned up six Gmail addresses, as well as the dates and frequency of contact with the email address linked to the offending ad.

Four of the six email addresses obtained received either a single response or no response from the Craigslist poster, suggesting a lack of ongoing negotiations for the sexual services of a minor. The other two, however, received multiple responses, suggesting negotiations had moved ahead.

Law enforcement then sought to obtain the content of the messages to the Yahoo email address of the detained suspect. That's where it ran into trouble. Rather than narrow its demands to the two accounts with the most activity, it requested content from all ad respondents. It did, however, specify a date range specifically surrounding the posting of the ad. This was approved by a magistrate judge and served to Google.

Google turned the warrant down, citing technical difficulties..

We have received your Search Warrant and after evaluating the items to be seized, we have determined that Google is not capable of identifying the specific records responsive to your request as currently described in the warrant. Because our production must adhere to the stated limits of the warrant, and we are unable to do so in this case, we require amended or re-issued process.

That's when things started to go a bit sideways.

Rather than seek an order compelling Google to comply with the original warrant, the government presented the Court with a second application. The agent explained that “Google was unable to comply with the warrant as written because the time frame was too narrow,” “Google is unable or unwilling to parse individual accounts for” the specific emails, and “Google typically provide[s] broad ranges of information and place[s] the burden on the law enforcement officer searching the information to stay within the parameters of the warrant.”

Perhaps Google was bluffing or it was simply tired of "providing broad ranges of information" to every government agency that came knocking. Whatever the case, the government's next move suggests it was stunned by Google's (apparently out-of-character) refusal… or its somewhat unbelievable claim that "records" from that time period simply could not be located. The government already had a judge clear the previous warrant application and give it the Fourth Amendment thumbs-up. It would have been incredibly simple to approach the same judge for a court order compelling the release of the records. What it did instead was strip the Fourth Amendment-friendly language from the previous application and present it to a different magistrate judge.

[T]he government’s second warrant requests authorization to seize the six third-party Gmail accounts in their entirety. Once the contents of the accounts are in its possession, the government appears to promise not to look at any emails outside the applicable date ranges. However, the warrant would not limit its ability to search the entirety of the Gmail accounts as the proposed warrant plainly authorizes the inspection of all email content in the accounts without regard to how remote in time or unrelated that content is to the current investigation.

So, to "fix" a Fourth Amendment-compliant warrant -- one that sought specific emails from a very narrow time frame -- the government went the other way, basically saying, "The hell with it. Give us EVERYTHING." Judge McCoy seems somewhat astounded by the government's Plan B: a 90% breathtaking audacity/10% vindictiveness warrant app that came nowhere near even the most minimal of Fourth Amendment standards.

Based on these probable-cause conclusions, a narrow intrusion into the email accounts is warranted. But the present application goes well beyond the narrow intrusion justified by the probable cause showing. It seeks judicial authorization to seize and then search the entire content of the six third-party Gmail accounts with no justification other than that Google has unilaterally elected not to comply.

In less subtle terms, the government behaved like a child when it was told, "No." Judge McCoy's order tells the government to grow up.

[T]he Court reiterates that the government has two alternative avenues through which to seize and search the sought-after emails. First, the government remains free to seek an order compelling Google to comply with the earlier warrant provided it limits the request to email content for the narrowly defined periods relevant to the investigation of the six third-party Gmail accounts. Alternatively, the government can renew the instant application provided it proffers to seal, without any review absent further court order, material supplied by Google that is outside the time period for which probable cause has been established.

Do it right or don't do it at all. At the very least, don't swing from one end of the Fourth Amendment spectrum to the next just because the warrant recipient doesn't immediately comply. Turning a narrow warrant into a general warrant is no way to run a law enforcement agency. And stomping all over the rights of others just because you're pissed off at being refused is no way to treat the people who pay your salaries.

Gmail Alaska 20150305 (PDF)Gmail Alaska 20150305 (Text)

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Filed Under: doj, emails, warrant
Companies: google

26 Comments

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Anonymous Coward, 12 Mar 2015 @ 5:01am

>Google is unable or unwilling

My bet is on unwilling, we know how able they are.
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Anonymous Coward, 12 Mar 2015 @ 5:08am

Get a foreign email account
This is why I think it's best for the average American Joe to have a non-US hosted email account. Sure, the NSA has a copy but that's not likely to be used against you unless you're a very high-profile target (this may change in the future). Abuse of business records happens with domestic law enforcement and domestic providers. Good luck to the podunk cops trying to seize the entire email accounts of a provider in a foreign country. We're seeing how that's turning out. https://www.eff.org/cases/re-warrant-microsoft-email-stored-dublin-ireland
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Anonymous Coward, 12 Mar 2015 @ 5:45am

Maybe we could do the same when the government says "no" to FOIA requests...
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beltorak (profile), 12 Mar 2015 @ 6:25am

if only it worked like this for the public
Isn't this the same thing that ended up shutting down Ladar Levinson's lavamail? "Oh, you can't tap a single email address? then just give us the keys to all your encryption. We promise not to look at anything we shouldn't...."

Shame it doesn't work like that in the other direction;

Because it would take too long to find the specific documents covered under this FOI request, we now request all documents in your department. We promise not to look at any documents not covered under the FOI request. Honest.
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Oblate (profile), 12 Mar 2015 @ 6:55am

The reason they fed them that line...
I suspect the prosecutors requested entire e-mail accounts so they could go on a fishing expedition to see who else those people had contacted regarding the type of activity under discussion. This doesn't sound like the proper method to use to get that information.

Is it possible that there were no responsive e-mails because they had been deleted by the account owner?
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PRMan, 12 Mar 2015 @ 7:26am

Re:
My bet is on, "They have the wrong date range and those accounts don't talk to each other on the day they said."

Or something along those lines. Google is saying very clearly that no records meet their search criteria and that they have it wrong.
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PRMan, 12 Mar 2015 @ 7:26am

Re: Get a foreign email account
It seems to me that this is proof that you should have a Gmail account.
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nasch (profile), 12 Mar 2015 @ 7:27am

Re: The reason they fed them that line...

Is it possible that there were no responsive e-mails because they had been deleted by the account owner?

"Deleted" means you can't see it anymore, not that Google can't.
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John Fenderson (profile), 12 Mar 2015 @ 8:10am

Re: Get a foreign email account
"Sure, the NSA has a copy but that's not likely to be used against you unless you're a very high-profile target (this may change in the future)."

Since the NSA admits that when they encounter things that indicate lawbreaking they forward that information on to law enforcement agencies, I don't think it's all that unlikely right now.
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Anonymous Coward, 12 Mar 2015 @ 8:16am

Re: The reason they fed them that line...
'Deleted' for Google means that they aren't visible to the user. In typical PC terms, it's the difference between an 'Empty Recycle Bin' and a military-grade overwriting software.
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Anonymous Coward, 12 Mar 2015 @ 10:21am

Re: Re: The reason they fed them that line...
For a while. After some time, their storage will be recycled, and backups will be rotated and overwritten.
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Anonymous Coward, 12 Mar 2015 @ 10:24am

Re: Re: The reason they fed them that line...
There's another difference between Google and a PC: Google has much more usage than a PC, which means the slack space gets overwritten more often.

In typical PC terms, it's like "Empty Recycle Bin" followed by downloading and erasing large amounts of multimedia content. You might be able to rescue something, but there's a good chance it's been overwritten.
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beltorak (profile), 12 Mar 2015 @ 10:33am

Re: Get a foreign email account
I think there's a very good chance that in the MS-Ireland case the person in question is *not* a US citizen. MS made the analogy that it would be like Ireland issuing a request for a US citizen's emails from servers on US soil.

But you also have to watch what country your emails are in. For example, Australia has gone full retard, which upsets me because I've already paid for my fastmail account; but regardless I'll be switching to runbox soon.
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Anonymous Coward, 12 Mar 2015 @ 10:45am

"Me boss now"
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Anonymous Coward, 12 Mar 2015 @ 11:00am

Re: Get a foreign email account
Since the NSA already harvests everything that passes through the internet, it would not be hard for one of NSA's many private contractors to design a system of "virtual mailboxes" assembled out of all those harvested mails, that would form a mirror image of every email account in existence in the world.

Then there would be no need for warrants, because the government would already have in its possession, not only every email ever sent to anyone, but also the full contents of every mailbox that ever existed -- to be saved in perpetuity and browsed by G-men as desired.

It's likely that such a system already exists within the NSA, and there's no doubt that the intelligence agencies of many other countries, especially post-Snowden, are well on their way to achieving their own versions of this "see-all/know-all" capability.
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TKnarr (profile), 12 Mar 2015 @ 11:10am

Re: The reason they fed them that line...
It sounds like the Feds asked, not for e-mail to/from the accounts in question and the Yahoo address, but all e-mails in the date range that were in response to the ad. Google's problem then is that they can't take a particular e-mail and programmatically decide definitively whether it's in response to that ad or not (and doing that manually for every e-mail to/from every GMail address for a date range is infeasible). Probably the form of their response was then a result of someone at Google going "Screw this, I'm tired of the government's games. Just tell them we can't respond and let them figure out how to correct their mistake, it's not our job to teach them how to request what they want.". The government's correct reaction then should've been to ask for all e-mails between the GMail accounts in question and the Yahoo account in question, which is something Google can produce easily. Instead the government's throwing a tantrum because they aren't being allowed to have their way.
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nasch (profile), 12 Mar 2015 @ 12:23pm

Re: Re: The reason they fed them that line...
It sounds like the Feds asked, not for e-mail to/from the accounts in question and the Yahoo address, but all e-mails in the date range that were in response to the ad. Google's problem then is that they can't take a particular e-mail and programmatically decide definitively whether it's in response to that ad or not (and doing that manually for every e-mail to/from every GMail address for a date range is infeasible).

Thanks, that makes a lot more sense. I was wondering why Google would claim something apparently completely bogus in refusing a warrant.
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nasch (profile), 12 Mar 2015 @ 12:24pm

Re: Re: Re: The reason they fed them that line...
In typical PC terms, it's like "Empty Recycle Bin" followed by downloading and erasing large amounts of multimedia content. You might be able to rescue something, but there's a good chance it's been overwritten.

Google isn't known for throwing away data. Do you have definite knowledge of how they operate, or are you guessing?
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nasch (profile), 12 Mar 2015 @ 12:25pm

Re: Re: Re: The reason they fed them that line...
For a while. After some time, their storage will be recycled, and backups will be rotated and overwritten.

You know this, or you're guessing?
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Anonymous Coward, 12 Mar 2015 @ 12:47pm

Re: Re: Get a foreign email account
IIRC Fastmail's servers are located in the US, so you're subject to both country's authority.
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Richard (profile), 12 Mar 2015 @ 1:08pm

Google copying the Government
To me Google's response looks remarkably similar to the way Government agencies respond to FOIA requests - oddly the government don't seem to like that...
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seedeevee (profile), 12 Mar 2015 @ 1:13pm

"Four of the six email addresses obtained received either a single response or no response from the Craigslist poster, suggesting a lack of ongoing negotiations for the sexual services of a minor. The other two, however, received multiple responses, suggesting negotiations had moved ahead."

From entirely unknown content to "suggestion-able content" is a pretty quick trip to Policestatesville.
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Coyne Tibbets (profile), 12 Mar 2015 @ 5:20pm

Taken literally
I'm wondering if that document linked isn't explicitly literal: That the government's original warrant said exactly the ranges specified in the document (such as "30 days following the first posting"); and that Google was not told what the posting dates were.

That either they failed to inform Google that the posting date related to a Craigslist advertisement, or that the government refused to give them the posting dates involved. That the government told Google privately not to worry about the dates, but just give us everything and we'll filter it.
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KRA, 12 Mar 2015 @ 7:35pm

Our men and women in uniform haven't defended the US from an existential threat since maybe WWII. The frontline soldiers defending our way of life and the idea of America seem to be a handful of vertebrate magistrates. And the librarians, obviously.
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John Fenderson (profile), 13 Mar 2015 @ 8:41am

Re:
"haven't defended the US from an existential threat since maybe WWII"

WWII wasn't an existential threat to the US. It was an existential threat to several of our allies, and we had promised to help in their defense.
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GEMont (profile), 14 Mar 2015 @ 2:19am

Crooks in the Halls of Power. Chapter 221
"And stomping all over the rights of others just because you're pissed off at being refused is no way to treat the people who pay your salaries."

Unless of course you're bringing home two or more "salaries" and the legal one from the public is the least of them.

It then behooves one to offer greater respect to the desires and demands of those parties that are paying out the largest of the extra-legal "salaries".

---
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