The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm working on a new law review article about the internal procedures that Internet providers follow when executing search warrants for content. Given that, I was particularly interested in this new decision from a magistrate judge in Alaska relieving Google of a duty to execute a warrant by combing through stored files for relevant content.
The case involves a search for evidence in e-mail accounts that were used to respond to a Craigslist advertisement about underage sexual activity. The warrant wasn't well-drafted, but it could be read as giving Google the job of searching through the e-mail accounts and identifying which e-mails were relevant to the case before handing them over to the government. The warrant was served on Google, which then challenged the warrant. From the opinion:
Google asks the Court to amend the first warrant, relieving it from any requirement to inspect the content of email correspondence for relevance and evidentiary value. Google asserts that such content review of email is a law-enforcement function that cannot properly be delegated to service providers. Google also notes that it is "not steeped in the investigation," and does not have the background, expertise, or resources to sift through email correspondence for content to determine relevancy and evidentiary value under the warrant.
For these reasons, Google asserts that the first warrant is unduly burdensome. It illustrates the burden by pointing out that over the twelve month period between July 2013 and June 2014, Google received 23,113 pieces of legal process from law enforcement agencies seeking information on 39,830 accounts. These legal process requests ran "the gamut from fraud cases, kidnapping and other emergencies, to routine civil and criminal demands for records." To respond to the myriad requests for assistance from law enforcement, Google maintains a "dedicated team" exclusively devoted to responding to legal process requests from law enforcement. Notwithstanding its policy of cooperation, Google asserts that the first warrant goes too far and imposes an undue burden on it because it does not have the resources necessary to review email content for relevance and for evidentiary value in a particular case. Moreover, even if it did have the resources, Google contends that the review of email content for investigative value should remain with law enforcement, should not be delegated to service providers.
These arguments are persuasive. Google is not equipped to determine whether particular content reflects innocent behavior or is evidence of criminal behavior. Indeed, Google, lacking law enforcement expertise, very well may overlook important evidence. And, finally, Google should not be burdened with duplicating efforts that ultimately will be repeated by law enforcement once content is disclosed.
This Court readily agrees with Google, particularly given the facts of this case. Here, there was absolutely no reason to ask Google to inspect content. Law enforcement knew precisely when the problematic advertisements were posted, precisely when emails related to the advertisements were exchanged, and the very email addresses that were used to correspond with [Redacted poster]@yahoo.com in apparent response to the problematic advertisement. It is a simple matter to draft a search warrant giving the government access to the content of communications at issue in this case without requiring Google to review that correspondence for content. That warrant need only identify the date range to be searched in each account, with a direction to seize all correspondence between the suspect Gmail account and [Redacted poster]@yahoo.com for the specified date range. Law enforcement then could easily assess the relevance and evidentiary value of the content and, if appropriate, return to the Court seeking broader access to the email accounts at issue.