District court overturns magistrate decision rejecting 'seize first, search second' procedure for email warrants

|The Volokh Conspiracy |

Magistrate Judge David J. Waxse has been an active participant in the "magistrates' revolt," an effort by a handful of federal magistrate judges to advance more privacy-protective approaches to the Fourth Amendment and the statutory privacy laws. In March, Waxse handed down a decision rejecting a warrant to search several Hotmail email accounts on the ground that the two-step procedure used to execute email warrants violated the Fourth Amendment. Under the procedure, the warrant orders the service provider to hand over the entire account; the government then searches the entire account for the information sought in the warrant. Echoing his decision from 2015 about cellphone searches, Waxse held in March that this two-step procedure violates the Fourth Amendment particularity requirement unless the government includes a sufficient set of ex ante search protocols guiding the warrant.

The government then sought further review from the Article III district court.

District Judge Carlos Murguia has now handed down a new decision reviewing Magistrate Judge Waxse's March decision. Judge Murguia does not engage a first-principles rethinking of the law as did Magistrate Judge Waxse. Instead, Judge Murguia mostly follows the decisions of other courts.

Most importantly, Judge Murguia concludes that the two-step email warrant procedure satisfies the Fourth Amendment's particularity requirement without search protocols:

[T]his court concludes it was clearly erroneous or contrary to law for Judge Waxse to find it was not sufficiently particular. The warrant application identified with specificity the target email accounts to be searched and the evidence to be seized in connection with violations of 18 U.S.C. §§ 371 (conspiracy), 1029 (access device fraud), 1030 (computer intrusion), 1343 (wire fraud), and 2319 (copyright infringement), all occurring since September 7, 2008. The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant. The application also included an affidavit detailing the criminal scheme and explaining the relevance of the evidence to the investigation. Rule 41(e) (2) authorizes the "seize first, search second" two-step process, thus allowing the government to obtain all of the data to later search for relevant evidence. And while Rule 41(e) (2) leaves open the question of particularity when the government seeks ESI, the majority of case law relating to the search of an email account has upheld the Government's ability to obtain the entirety of the account to then search for relevant evidence. Based on the current state of the law, this court finds Judge Waxse's decision regarding particularity was clearly erroneous or contrary to law.

On the other hand, Judge Murguia agrees that probable cause was lacking in this application, and he refuses to consider the government's updated application that had a broader basis of cause. So the government wins on the big issue, but technically it loses on this particular application (which it can then just renew with more evidence).

Also interesting, albeit in dicta, Murguia states that ex ante search restrictions are not per se prohibited:

Various courts have held that ex ante instructions are permissible, but not required under the Fourth Amendment. See In re Search Warrant, 71 A. 3d 1158 (Vt. 2012) (rejecting "any blanket prohibition on ex ante search warrant instructions"); see also In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d 386, 397 (S.D.N.Y. 2014), as amended (Aug. 7, 2014) [hereinafter, SDNY Email] (noting there was no requirement that a "magistrate judge approving a warrant application must or should impose ex ante restrictions pertaining to the later execution of that warrant" (emphasis added); United States v. Christie, 717 F. 3d 1156, 1166-67 (10th Cir. 2013) (discussing that the Fourth Amendment particularity requirement may or may not require limitations ex ante; however, "even if courts do not specify particular search protocol up front in the warrant application process, they retain the flexibility to assess the reasonableness of the search protocols the government actually employed in its search after the fact, when the case comes to court, and in light of the totality of the circumstances."); United States v. Hill, 459 F. 3d 966, 978 (9th Cir. 2006) ("Moreover, in contrast to our discussion of the overbroad seizure claim above, there is no case law holding that an officer must justify the lack of a search protocol in order to support issuance of the warrant. As we have noted, we look favorably upon the inclusion of a search protocol; but its absence is not fatal")

On the other hand, Judge Murguia "declines to rule on whether any [search restrictions], individually, are reasonable in this particular case":

Although Judge Waxse included many options in his order, these were simply suggestions for the government in the future, not court-ordered ex ante instructions for the issuance of this specific warrant. Had Judge Waxse, for example, provisionally granted the warrant under the premise the government would submit a search protocol, or had he granted the warrant but ordered the use of a special master to search the data seized from the Provider, this court could then review those court-ordered ex ante limitations for reasonableness. Because no ex ante instructions were ordered, this court has nothing to review, and to comment on the reasonableness of each suggested limitation would result in this court issuing an advisory opinion.

Near the end of the opinion, Murguia summarizes his view of ex ante restrictions as follows: "[W]hile this court acknowledges that a judge may have the authority to impose reasonable ex ante instructions, it declines to comment on the ex ante instructions suggested by Judge Waxse."

I think Judge Murguia's discussion of ex ante search restrictions is mixing up some different issues. No one disagrees that if the government wants to include search restrictions, it is allowed to do so. Put another way, the magistrate judge can't refuse to issue a warrant on the grounds that the government included ex ante restrictions. The question here raises the inverse issue: Can the magistrate judge condition issuing a warrant application on including an ex ante restriction, such that the application can be denied if the government refuses to include ex ante restriction?

My understanding is that the only precedent on this question is the 2012 Vermont case. It's unfortunate that Judge Murguia appears not to question that precedent, as I think it's wrong. But this is just dicta in the district court's opinion, and the government won on the issue it had litigated. Given that, the legality of ex ante search restrictions remains uncertain.

The interesting question is what Magistrate Judge Waxse will do in response to the new opinion. Judge Murguia has now said that email warrants without search protocols satisfy the Fourth Amendment, but also that magistrate judges "may have the authority to impose reasonable ex ante instructions." If you're Waxse, do you now issue the warrants without search protocols on the grounds that such warrants are constitutional and Rule 41 states that you "must" issue the warrant accordingly? Or do you now just add your own search protocols—whatever feels reasonable to you—and then force the government to decide whether to seek review of those search protocols under whatever reasonableness standard the district court may later devise?

I'm guessing the latter, which means that there's likely more litigation ahead. As always, stay tuned.

UPDATE: An interesting question of procedure is how the government can seek review of any ex ante search restrictions. If the Magistrate Judge issues the warrant with an added unwanted condition, how can the government seek review of that? If you treat a warrant application as pre-trial litigation, as the district court does here, doesn't the issuance of the warrant mean that the government "won"? Or can the government file some kind of "motion to amend search warrant" in the district court? I'm not sure how that is supposed to work procedurally.