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In re Information Associated with [Redacted]@Mac.com

United States District Court, D. Columbia.

April 7, 2014

IN THE MATTER OF THE SEARCH OF INFORMATION ASSOCIATED WITH [REDACTED]@MAC.COM THAT IS STORED AT PREMISES CONTROLLED BY APPLE, INC

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[Copyrighted Material Omitted]

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OPINION

SECOND MEMORANDUM OPINION AND ORDER

JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court is a Renewed Application for a search and seizure warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(a), (b) and (c) to disclose certain records and contents of electronic communications relating to an Apple email address.[1] See Affidavit in Support of an Application for a Search Warrant [#5-1] (sealed) at 1 (hereinafter Affidavit). In a previous Memorandum Opinion and Order,[2] this Court denied the government's original application for a search and seizure warrant for the same e-mail address without prejudice both because it failed to clearly specify which e-mails it sought to seize and because it sought authorization to seize e-mails for which it had not established probable cause to seize. In re Search of Apple E-mail, 2014 WL 945563, at *3, *5. The government's Renewed Application does not address these concerns and ignores the substance of this Court's previous rulings. The government persists in its attempt to seize an entire e-mail account and search through all of it. For the reasons stated below, the government's Renewed Application for a search and seizure warrant will, therefore, be denied.

I. Background

This is the government's second attempt to obtain a search and seizure warrant for a specific Apple e-mail address as part of its investigation of a possible violation of 41 U.S.C. § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy) involving a defense contractor. Affidavit at 10. For purposes of this opinion, the details of the investigation--which remain under seal on the Court's docket--are irrelevant.[3]

[4] In re Search of

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Apple E-mail, 2014 WL 945563, at *7 (" To be clear: the government must stop blindly relying on the language provided by the Department of Justice's Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual. By doing so, it is only submitting unconstitutional warrant applications." ). In an " Attachment A," titled " Place to Be Searched," the government specifies the location of Apple, Inc. and indicates that the " warrant applies to information associated with the e-mail account [redacted]@mac.com dating from [January], 2014, to the present." [5] Affidavit at 12. An " Attachment B," titled " Particular things to be seized by the government," is as follows:

ATTACHMENT B

Particular things to be seized by the government

All emails, including email content, attachments, source and destination addresses, and time and date information, that constitute evidence and instrumentalities of violations of 41 U.S.C. § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy), dated between [January], 2014, to the present, including emails referring or relating to a government investigation involving any or all of the following: [Redacted list of names of companies and individuals in the form of " John Smith, John Smith, Inc., any current or former John Smith employees, etc." ].

Id. at 13.

Finally, the government has included an " Attachment C," titled " Procedures to facilitate execution of the warrant" :

ATTACHMENT C

Procedures to facilitate execution of the warrant

I. Information to be disclosed by Apple (the " Provider" )

To the extent that the information described in Attachment A is within the possession, custody, or control of the Provider, including any emails that have been deleted but are still available to the Provider, or have been preserved pursuant to a request made under 18 U.S.C. § 2703(f) [in January], 2014, the Provider is required to disclose the following information to the government for the account listed in Attachment A: all emails, including attachments, associated with the account, dating from [January], 2014, to the present, and including stored or preserved copies of emails sent to and from the account, draft emails, the source and destination addresses associated with each email, the date and time at which each email was sent, and the size and length of each email.
Apple shall deliver the information set forth above via United States mail, courier, or email to: [The Department of Justice].

II. Government procedures for warrant execution

The United States government will conduct a search of the emails produced by the Provider and determine which are within the scope of the information to be seized specified in Attachment B. Those that are within the scope of Attachment B may be copied and retained by the United States.
Law enforcement personnel will then seal any information from Apple that does not fall within the scope of Attachment

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B and will not further review the information absent an ...

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