Appeals Court: As Long As The Government Has 'Good Faith,' It Can Root Around In Your Digital Files As Much As It Wants

from the no-time-for-merits,-not-when-there-are-people-needing-to-be-locked-up! dept

A case dealing with a warrant issued in 2003, a subsequent warrant issued in 2006, and a whole lot of judicial work in between finally concludes -- with the Second Circuit Court of Appeals coming down on the side of the government's apparent "right" to seize everything, hold it for an indefinite period of time, and pore through unrelated documents in hopes of finding evidence of additional criminal activity.

The government, in the form of the US Army, first went after Stavros Ganias for billing improprieties and theft of copper wire. Over the next three years, this morphed into an IRS investigation for tax fraud, using the same hard drives the Army seized three years before the IRS showed any interest. The IRS obtained its own warrant and began looking for evidence related to its suspicions.

In 2014, the Appeals Court decided Ganias' Fourth Amendment rights had been violated by the government's multi-agency fishing expedition.

The Government's retention of copies of Ganias's personal computer records for two-and-a-half years deprived him of exclusive control over those files for an unreasonable amount of time. This combination of circumstances enabled the Government to possess indefinitely personal records of Ganias that were beyond the scope of the warrant while it looked for other evidence to give it probable cause to search the files. This was a meaningful interference with Ganias's possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment.

[....] The Government had no warrant authorizing the seizure of Ganias's personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of American Boiler and IPM. Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated Ganias's Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.

The DOJ immediately asked for a rehearing, claiming it should be able to dig through unrelated files because the seized hard drives were technically government property. Besides, it explained in its 86-page brief, this sort of fishing around in non-relevant files had once resulted in a child pornography conviction.

The Second Circuit's second take [PDF] doesn't necessarily align with the government's arguments. However, despite the opinion running 60 pages, the court spends very little time discussing the Fourth Amendment implications and a lot of time developing the government's "good faith exception" argument for it.

For whatever reason, the court mostly glosses over the lack of "good faith" in the Army's examination of files unrelated to is investigation and its extended seizure (in the form of mirrored hard drives) of non-relevant files. Instead, it focuses mostly on the IRS's warrant and search of the mirrored drives, finding that this warrant -- issued two-and-a-half years after the first one and predicated on the Army's peek at unrelated files -- was obtained and executed in "good faith." The end result is another win for the government's heart being in the right place and another loss for Fourth Amendment protections.

Ganias argues that the Government retained non-responsive data on mirrored hard drives acquired pursuant to a 2003 search warrant in violation of the Fourth Amendment, and that evidence acquired pursuant to a 2006 search of that data should thus have been suppressed. Because we find that the Government relied in good faith on the 2006 warrant, we need not and do not decide whether the Government violated the Fourth Amendment, and we affirm the judgment of the district court.

Further on in the opinion, the court inadvertently shows its hand -- pointing out that discussing "good faith" exceptions means it's not interested in examining the merits of the defendant's arguments.

Having noted Ganias’s argument, we do not decide its merits. We instead turn to the question of good faith.

The government gets credit for trying. The accused get nothing more than a brief tap on the shoulder as the court squeezes by them and their questions.

Judge Chin's dissent [PDF], for what little good it does for Ganias and future citizens in his position, at least makes some attempt to address the lack of merit in the government's arguments.

[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.

Chin is uninterested in allowing the government to shrug and say, "Technology is hard," before obtaining its "good faith" pass from the courts.

The majority opinion, however, makes it clear that as long as the government obtains a warrant, it can dig through non-relevant documents for an indefinite period of time. Because the court decided to pass on examining the merits of Ganias' Fourth Amendment arguments, the government will be able to use its "good faith" shield in the Second Circuit for years to come. It took Ganias several years of courtroom appearances to fight a search that occurred ten years ago. And while this has made its way slowly through the justice system, his life has been on hold. Tracing back to the point where he was first investigated for wrongdoing, that's 13 years of his life -- and all of it for nothing, thanks to the two words no defendant wants to hear: good faith.

Filed Under: 4th amendment, good faith exception, stavros ganias, warrant

DOJ Reasserts Its Right To Engage In Seized Data Fishing Expeditions

from the so-many-'interests,'-so-few-granted-to-individual-citizens dept

Last June, the Second Circuit appeals court restored a bit of Fourth Amendment protection to computers/devices seized by government investigators. In the case being appealed, accountant Stavros Ganias had three of his computers imaged by Army investigators looking for evidence of billing fraud and property theft. He wasn't a suspect in either of the crimes and the warrant specified investigators were only to review information from Ganias' hard drives pertinent to these allegations.

Instead, the Army held onto every piece of data it had obtained for two-and-a-half years before investigators came across data that suggested Ganias was committing tax fraud. It reoriented its investigation and obtained a warrant to search the imaged drives for more evidence of Ganias' malfeasance.

Ganias challenged this, claiming the government's inability to stay within the limits of its initial investigation violated his Fourth Amendment rights. The appeals court agreed, and tossed the evidence investigators had gathered with its second warrant.

The Government had no warrant authorizing the seizure of Ganias's personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of American Boiler and IPM. Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated Ganias's Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.

The DOJ disagreed with this finding and asked for an en banc rehearing. The court has obliged, giving the agency a second crack at receiving legal permission to engage in prolonged fishing expeditions with seized devices and data. The DOJ has filed an 86-page brief, which not only suggests investigators have every right to root around in digital unmentionables until evidence of criminal activity -- any criminal activity -- is found, but that the term "brief" is often severely misleading.

TL; DR: because warrants were issued (even if the second had nothing to do with the target of the first warrant), no Fourth Amendment violation occurred. And, if a violation did occur, here's a "good faith" band-aid.

The government’s actions in this case were reasonable and complied with the Fourth Amendment. The Fourth Amendment permits the seizure of computers to execute search warrants and further permits the retention of those computers—even if they contain non-responsive files—for legitimate government reasons, including, inter alia, evidence authentication and compliance with discovery obligations. Because the government legitimately holds the forensic images, a subsequent search of those images is generally reasonable where, as here, the search is authorized by a search warrant. But even if the government agents failed to comply with the Fourth Amendment in some respect, they acted in good faith, in reliance on two warrants, and with the goal of respecting the defendant’s Fourth Amendment rights. Accordingly, there is no basis for suppression in this case.

More specifically, the DOJ argues that the government's needs and wants (along with its possessory interest during the duration of the original investigation) supersede any privacy interest raised by Ganias. The DOJ makes only a passing reference to its fishing expedition, claiming it was prompted (mostly) by evidence not located on the seized computers.

Because the government acted reasonably in obtaining and retaining the forensic images in this case, its subsequent search of those images for evidence of tax violations by Ganias—under the authority of a new search warrant—was also reasonable. The images were legitimately in the government’s possession, and the government developed probable cause (based largely on evidence outside the retained forensic images) to believe that the images contained evidence of another crime. Thus, it is entirely reasonable for the government to obtain a subsequent search warrant to review a retained image anew. The individual’s privacy interest is protected effectively by the issuance of a second warrant.

The DOJ spends most of the brief explaining both imaging methods and the many reasons all seized data must remain intact during the course of an investigation. It devotes far fewer paragraphs to explaining why it feels it has the right to examine unrelated files for evidence of other wrongdoing. When it does finally get around to discussing this aspect of its "rummaging" efforts, it unsurprisingly decides this is best illustrated with a recounting of a child pornography investigation.

This doesn't conflate Ganias' almost-undetected tax evasion with the sexual abuse of children, because that would be pointless and crazy. It's actually more devious and disingenuous than that. It not-so-subtly implies that if the court finds rummaging through files and examinations exceeding the scope of issued warrants to be a violation of the Fourth Amendment, child pornographers will go undetected or unpunished.

Now, in all fairness to a government agency (one frequently unwilling to extend the same courtesy to others), examining hard drive images is far from straightforward and it's often difficult to determine what's relevant without looking at what isn't.. The language of affidavits isn't really built to handle the nuances of forensic data examination. Changes in technology definitely raise new concerns and issues, but the DOJ feels any new problems should be resolved in its favor.

It contends that the government retains a possessory interest in seized computers, which will almost always outweigh the interests of those whose devices have been seized. This becomes very problematic when the agency seizing the data also determines the extent of the searches and the endpoint of any investigations. While the establishment of probable cause and the securing of warrants does conform with the requirements of the Fourth Amendment, the strength of those protections can easily be undermined by the same government that's supposed to be respecting these boundaries.

The appeals court will be wading back into some very thorny issues. Hopefully, it won't result in scaled-back protections.

Filed Under: doj, fishing expedition, fourth amendment, stavros ganias

Court Says Feds Violated 4th Amendment By Holding Onto Suspect's Computer Data Too Long

from the hey-the-4th-amendment-still-exists dept

Yet another court has remembered that the 4th Amendment exists. The Second Circuit appeals court has ruled that the government violated the 4th Amendment rights of Stavros Ganias when it held onto data it had seized (legally) from his computers for longer than the warrant in question allowed. In executing the warrant, Army investigators (Ganias was providing tax and accounting services to a couple of companies providing security to the Army at a vacant facility, and there were allegations that people at one of the companies was stealing copper wire from the facility and also playing some games with billing) made copies of Ganias' computer hard drives -- including files "beyond the scope of the warrant" such as his personal financial records.

While Ganias objected to the collection of such files as it was happening, he was told investigators were only concerned with the specific case at hand and would get rid of the other files. Take a guess what didn't happen? Yeah, they hung onto those files, and then in searching them, found some other stuff of interest and passed all of the files along to the IRS. While they claim that they focused on the files the warrant covered, they refused to delete the other files:

They did not, however, purge or delete the non-responsive files. To the contrary, the investigators retained the files because they "viewed the data as the government's property, not Mr. Ganias's property." Their view was that while items seized from an owner will be returned after an investigation closes, all of the electronic data here were evidence that were to be protected and preserved. As one agent testified, "[W]e would not routinely go into DVDs to delete data, as we're altering the original data that was seized. And you never know what data you may need in the future. . . . I don't normally go into electronic data and start deleting evidence off of DVDs stored in my evidence room." The computer specialists were never asked to delete (or even to try to delete) those files that did not relate to IPM or American Boiler.

Now take a guess what happened? After digging deeper into the original files, the IRS suddenly began to suspect Ganias himself of cooking some books, and decided it wanted to look at his personal financial records which, conveniently, were right there in the collection of documents they were never supposed to have or look at. To their (slight) credit, the IRS recognized it couldn't just search those files, and so got another warrant to go through them. However, it only had them because it had sat on them for two and a half years, and Ganias insists that the original files had been changed soon after the Army's copying of his hard drives. At trial, Ganias was convicted, but the appeals court has trouble with the 4th Amendment implications. After going through a quick history of the 4th Amendment it notes (thankfully) that these concepts still apply in the computer age.

These Fourth Amendment protections apply to modern computer files. Like 18th Century "papers," computer files may contain intimate details regarding an individual's thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is warranted....

It also notes that with so much stuff stored on computer, sometimes this gets tricky:

Not surprisingly, the ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants. It is "comparatively" commonplace for files on a computer hard drive to be "so intermingled that they cannot feasibly be sorted on site."... As evidenced by this case, forensic analysis of electronic data may take months to complete. It would be impractical for agents to occupy an individual's home or office, or seize an individual's computer, for such long periods of time. It is now also unnecessary. Today, advancements in technology enable the Government to create a mirror image of an individual's hard drive, which can be searched as if it were the actual hard drive but without interfering with the individual's use of his home, computer, or files.

The court notes that creating such a mirror image is okay... but there are limits on what can be done with the seized data. By hanging onto all his records indefinitely, the court found that it interfered with his 4th Amendment rights.

The Government's retention of copies of Ganias's personal computer records for two-and-a-half years deprived him of exclusive control over those files for an unreasonable amount of time. This combination of circumstances enabled the Government to possess indefinitely personal records of Ganias that were beyond the scope of the warrant while it looked for other evidence to give it probable cause to search the files. This was a meaningful interference with Ganias's possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment.

[....] The Government had no warrant authorizing the seizure of Ganias's personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of American Boiler and IPM. Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated Ganias's Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.

As for the government's argument that once they have these files they're now "government property," the court rejects that pretty quickly.

As explained above, practical considerations may well justify a reasonable accommodation in the manner of executing a search warrant, such as making mirror images of hard drives and permitting off-site review, but these considerations do not justify the indefinite retention of non-responsive documents.... Without a warrant authorizing seizure of Ganias's personal financial records, the copies of those documents could not become ipso facto "the government's property" without running afoul of the Fourth Amendment

The court also rejects a variety of other attempts by the government to get around this, including the fact that Ganias had not earlier brought a motion to "return" the property. Apparently that was convincing to the lower court, but not so here.

Imposing such a prerequisite makes little sense in this context, where Ganias still had the original computer files and did not need the Government's copies to be returned to him. Moreover, we fail to see what purpose a Rule 41(g) motion would have served, given the Government's position that non-responsive files in its possession could not feasibly have been returned or purged anyway.

In the end, the court outlines how troubling the government's position is in this case:

The Fourth Amendment was intended to prevent the Government from entering individuals' homes and indiscriminately seizing all their papers in the hopes of discovering evidence about previously unknown crimes.... Yet this is exactly what the Government claims it may do when it executes a warrant calling for the seizure of particular electronic data relevant to a different crime. Perhaps the "wholesale removal" of intermingled computer records is permissible where off-site sorting is necessary and reasonable,... but this accommodation does not somehow authorize the Government to retain all non-responsive documents indefinitely, for possible use in future criminal investigations.

There's a separate issue also in the case, concerning a juror commenting (negatively) on the case on Facebook during the case (and also friending another juror on Facebook), but the court didn't seem to concerned about that, rather suggesting that courts should be a bit more upfront with jury instructions to avoid that sort of thing.

Either way, while a very specific issue, it's a nice 4th Amendment win.

Filed Under: 4th amendment, irs, second circuit, seized data, stavros ganias, warrants