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In re Search of Information Associated with [Redacted]@mac.com

United States District Court, D. Columbia.

August 8, 2014

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

Decided Date: August 7, 2014

Page 158

For ELECTRONIC FRONTIER FOUNDATION, Movant: Nathan Daniel Cardozo, LEAD ATTORNEY, ELECTRONIC FRONTIER FOUNDATION, San Francisco, CA.

For USA, Plaintiff: L. Wade Weems, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Fraud Section, Criminal Division, Washington, DC.

OPINION

Page 159

MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief United States District Judge.

The government challenges an order by Magistrate Judge John M. Facciola denying its second application for a search warrant under § 2703 of the Stored Communications Act, 18 U.S.C. § § 2701-12. The magistrate judge denied the government's application on the ground that the requested warrant amounted to an unconstitutional general warrant due, in large part, to the procedures set forth in the application for executing the requested warrant. Following the magistrate judge's denial of the search warrant application and the government's subsequent challenge to that decision, the Electronic Frontier Foundation moved for leave to file an amicus brief. Because the government's application complies with the Fourth Amendment and the specific procedures for executing the warrant

Page 160

are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge's order will be vacated, and the government's application for a search warrant will be granted.

BACKGROUND

On March 5, 2014, the government filed under 18 U.S.C. § 2703 of the Stored Communications Act, 18 U.S.C. § § 2701-2712 a sealed application for a search warrant for electronic communications and other evidence stored on a computer.[1] The government's search warrant application related to a specific e-mail account, [redacted]@mac.com, and involved alleged violations of 41 U.S.C. § 8702 (kickbacks) and 18 U.S.C. § 371 (conspiracy). The government's application included an affidavit in support of the search warrant providing factual information to support a finding of probable cause.[2] In addition, the government's application included two attachments that set forth the place to be searched and the particular items that the government intended to seize, including specific information that the electronic service provider, Apple, Inc., would be required to disclose. See Govt.'s Application for a Search Warrant (" Govt.'s Application" ), Attach. A, Place to Be Searched at 1; Govt.'s Application, Attach. B, Particular Things to Be Seized by the Government at 1. The magistrate judge denied the government's application for a search warrant in part because the application failed to clearly indicate that Apple was required to disclose e-mails in particular, and because probable cause had not been established for all of the emails requested in the search warrant. In Re: Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., Mag. Case No. 14-228 (JMF), 2014 WL 945563, at *2-3 (D.D.C. Mar. 7, 2014). In addition, the magistrate judge objected to the government's use of Rule 41(e)'s " two-step procedure" [3] for gathering evidence whereby Apple would first be required to disclose to the government all e-mails associated with the target e-mail account, and then, at a later point, the government would examine the e-mails at separate location to identify evidence specified in Attachment B to the government's application. [WL] at *5-6.

The government filed a second application for a search warrant on March 28, 2014. In the revised application, the government

Page 161

indicated that the warrant applied to the e-mail account for " [redacted]@mac.com," and that the warrant covered " information . . . dating from January 14, 2014, to the present, and stored at premises controlled by Apple Inc." Govt.'s Application for a Search Warrant (" Govt.'s 2d. Application" ), Attach. A at 1. Attachment B set forth further details on the particular items to be seized, which included the following records:

All e-mails, including e-mail 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 14, 2014, to the present, including e-mails referring or relating to a government investigation involving any or all of the following: [individuals and entities have been redacted].

Id., Attach. B at 1. Attachment C to the government's revised application included the specific procedures for executing the search warrant wherein the government would first " conduct a search of the e-mails produced by the Provider and determine which are within the scope of the information to be seized specified in Attachment B," and then copy and retain those e-mails that are " within the scope of Attachment B." Id., Attach. C at 1. Law enforcement personnel would then " seal any information from Apple that does not fall within the scope of Attachment B," ...


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