August 11, 2014, 2:51 AM — A judge in Washington, D.C., ruled that providing law enforcement with access to an entire email account in an investigation did not violate the Fourth Amendment to the U.S. Constitution that prohibits unreasonable searches and seizures of property.
The order Friday by Chief Judge Richard W. Roberts of the U.S. District Court for the District of Colombia reversed an earlier decision by Magistrate Judge John M. Facciola who refused to allow a two-step procedure whereby law enforcement is provided all emails relating to a target account, and is then allowed to examine the emails at a separate location to identify evidence.
The striking down of Judge Facciola's ruling will likely fuel the privacy debate in the country. A New York judge defended last month his order that gave the government access to all content of the Gmail account of a target in a money laundering investigation.
Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York held that courts have long recognized the practical need for law enforcement to seize documents if only to determine whether they fall within the warrant.
The opinion was at odds with decisions by judges in several courts, Judge Gorenstein noted.
In his review, Judge Roberts appears to have taken a similar view on the issue as Judge Gorenstein in New York.
Judge Roberts wrote that the two-step process is in compliance with the Fourth Amendment and the Federal Rule of Criminal Procedure 41. Asking a service provider to execute a search warrant could pose problems, as non-government employees, untrained in the details of criminal investigation, likely lack the requisite skills and expertise to determine whether a document is relevant to the investigation, he wrote.
Judge Gorenstein had also rejected the option of getting the email host to search the emails, stating that Google employees would not be able to figure the significance of particular emails.
Judge Facciola had earlier ruled that probable cause had not been established for all of the large quantities of emails the government wanted to seize, and recommended that the service provider, in this case Apple, should be asked to search for the relevant mails, rather than handing over all the information to government officials.
"What the government proposes is that this Court issue a general warrant that would allow a 'general, exploratory rummaging in a person's belongings'--in this case an individual's e-mail account," Judge Facciola wrote in March.