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In re Search of Apple iPhone

United States District Court, D. Columbia.

March 26, 2014

IN THE MATTER OF THE SEARCH OF APPLE IPHONE, IMEI 013888003738427

For USA, Plaintiff: David Joseph Mudd, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, WASHINGTON, D.C., National Security Section, Washington, DC.

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MEMORANDUM OPINION AND ORDER

JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court is an Application for a search and seizure warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure for an Apple iPhone 4. See Affidavit In Support of Application for Search Warrant at 6 (hereinafter the " Affidavit" ).[1] In response to this Court's recent rulings with respect to the proper

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scope of searches of electronic devices,[2] the government has provided a detailed " Attachment B" --which lists the items to be seized from the iPhone--and a new section, entitled " Electronic Storage and Forensic Analysis" (hereinafter " Forensic Analysis section" ). See Affidavit at 10-15. Although Attachment B provides a sufficiently particularized list of the data that the government will search for and seize, the Forensic Analysis section fails to provide this Court with the same level of detail as to the methodologies to be used to conduct the search. Specifically, the government fails to articulate how it will limit the possibility that data outside the scope of the warrant will be searched. For the reasons stated below, the government's Application for a search and seizure warrant will, therefore, be denied.

I. Background

The government's Application is part of its investigation of Daniel Milzman, a Georgetown University student suspected of creating ricin in his dorm room in violation of 18 U.S.C. § 175.[3] See Affidavit at 3-4. Pursuant to a search and seizure warrant issued by this Court on March 18, 2014, see In the Matter of the Search of the Premises Located at Georgetown University [REDACTED], Mag. Case No. 14-263 (sealed), the government seized the iPhone at issue.[4] In that warrant, the Court interlineated a requirement that a separate search and seizure warrant must be obtained to actually search the contents of the iPhone. See Id., Mag. Case No. 14-263 [#4] at 5-6.

The government has now returned for that subsequent search and seizure warrant. Pursuant to a standard format used by the government, the Application contains an " Attachment A," which describes the device to be searched, and Attachment B, which lists the specific data to be seized. See Affidavit at 13-15. Specifically, Attachment B says:

ATTACHMENT B

LIST OF ITEMS AUTHORIZED TO BE SEARCHED FOR AND SEIZED PURSUANT TO FEDERAL SEARCH WARRANT AT THE TARGET RESIDENCE

1. All records on the Device described in Attachment A that reference or relate to violations of Title 18, United States Code, Section 175 (development, production, stockpile, transfer, acquisition, retention, or possession of a biological agent, toxin, or delivery system) and involve DANIEL HARRY MILZMAN, including:

a. Records of or information about the Device's Internet activity, including firewall logs, caches, browser history and cookies, " bookmarked" or " favorite" web

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pages, search terms that the user entered into any Internet search engine, and records of user-typed web addresses;

b. Records of activities relating to the operation and ownership of the Device, such as telephone incoming/outgoing call records, notes (however and wherever written, stored, or maintained), electronic books, diaries, and reference materials.

c. Records of address or identifying information for DANIEL HARRY MILZMAN and (however and wherever written, stored,

d. Any digital images documenting, referencing, or related to the production, storage, or dissemination of biological agents, toxins, or delivery systems;

e. GPS data stored on the Device to include the Device's location and search history;

f. Any records of activity indicative of purchases potentially related to materials used in the production and/or storage of biological agents, toxins, or delivery systems;

g. Evidence of user attribution showing who used or owned the Device during the time the ...

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