New York Judge OKs Warrant To Search Entire Gmail Account 150
jfruh writes While several U.S. judges have refused overly broad warrants that sought to grant police access to a suspect's complete Gmail account, a federal judge in New York State OK'd such an order this week. Judge Gabriel W. Gorenstein argued that a search of this type was no more invasive than the long-established practice of granting a warrant to copy and search the entire contents of a hard drive, and that alternatives, like asking Google employees to locate messages based on narrowly tailored criteria, risked excluding information that trained investigators could locate.
Warrants are supposed to be narrow (Score:5, Insightful)
lternatives, like asking Google employees to locate messages based on narrowly tailored criteria, risked excluding information that trained investigators could locate.
Ummm, isn't that PRECISELY the point? If the search criteria isn't sufficiently broad to catch someone then that means they don't have enough evidence to be conducting the search in the first place. Almost everyone can be found guilty of some illegal activity (however minor) if the search parameters are sufficiently broad.
Re:Warrants are supposed to be narrow (Score:5, Insightful)
Ummm, isn't that PRECISELY the point?
No. The point of the fourth amendment is to prevent investigators from harassing people looking for reasons to prosecute and persecute.
What seems to be happening here is that there is already evidence enough to justify a search, but the details are not specific enough to be able to ask someone else to execute it. As a physical analogue, there's enough evidence to search a house for a murder weapon, but the investigators don't know it's taped to the bottom of the third dresser drawer. In the case of email, I'd expect the investigators don't know all aliases that might have been used, or in what timeframe the relevant emails might have been sent.
Re:Warrants are supposed to be narrow (Score:5, Insightful)
A better analogy would be "we have enough evidence to justify a search, but we don't know whether the murder weapon is a gun, a knife, a potato, or a window, so we're going to be keeping an exact record of every single object in the house".
Re:Warrants are supposed to be narrow (Score:5, Insightful)
Could be. If several witnesses see an assailant bludgeon someone on the sidewalk with an obscured object, then run into a house, the police may not be able to ascertain exactly what the weapon is, but they'd certainly have enough evidence for a search, and they could keep a record of any potential weapons seen in the house in case forensics can later get them a better description of the weapon used. As in this case, they'd have to get as narrow a warrant as possible, specifying that they're searching for the weapon and not, say, evidence of tax fraud. Of course, if they found readily-visible evidence of such fraud during the course of the authorized search, they are not required to ignore it.
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True, but at least in that case you'd expect them to limit their search to plausible bludgeons. It's a tantalising grey area, I think we both agree.
Re:Warrants are supposed to be narrow (Score:5, Insightful)
Could be. If several witnesses see an assailant bludgeon someone on the sidewalk with an obscured object, then run into a house, the police may not be able to ascertain exactly what the weapon is, but they'd certainly have enough evidence for a search, and they could keep a record of any potential weapons seen in the house in case forensics can later get them a better description of the weapon used.
I don't think the question is really whether the judge can order such a thing. I think it's more of a question of whether it is justified in this case.
GP made a very good point. Search warrants are required to be particular, and to specify the particular thing(s) being searched for. If they don't know what they're looking for, broadening the search to turn it into a "fishing expedition" is not allowable.
The general principle is that the search should be as narrowly focused on particular evidence as can practically be managed. Is that the case here? It doesn't seem to be, but I'm not the judge, I don't know the details.
Re:Warrants are supposed to be narrow (Score:5, Insightful)
The general principle is that the search should be as narrowly focused on particular evidence as can practically be managed. Is that the case here? It doesn't seem to be, but I'm not the judge, I don't know the details.
I suspect the issue might be that a list of keywords (and synonyms) that would be reasonable in a money laundering case might be so large as to make a global retrieval seem reasonable. And, paring back the list of words might miss something important.
I see no harm whatsoever allowing a search through all the GMail of that one person for evidence concerning money laundering, with evidence of any unrelated crimes (e.g., admission to a murder of a spouse because they were sleeping with someone else) not being admissible.
Re:Warrants are supposed to be narrow (Score:4, Insightful)
I don't think the question is really whether the judge can order such a thing. I think it's more of a question of whether it is justified in this case.
We lack the data to second-guess the judge's judgment. I'm elated by this story, personally. There was a judge; there was a warrant; that's amazing progress for email!
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OTOH, this judge thought it quite reasonable to search an entier hard drive. And said it was established predecent. Yuck! That's NOT a narrow search.
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How is searching an entire hard-drive for a particular thing (a file containing X) any different than searching an entire house for a .40 S&W handgun. Knowing the basics of file structures, would you have them specify which sectors on which tracks of which platters to search? Please, lets be a little bit realistic about things.
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How is searching an entire hard-drive for a particular thing (a file containing X) any different than searching an entire house for a .40 S&W handgun. Knowing the basics of file structures, would you have them specify which sectors on which tracks of which platters to search? Please, lets be a little bit realistic about things.
It isn't, necessarily. It depends on what they're searching for, which we don't know from the story. Don't assume I'm being "unrealistic" just because you didn't read my comment carefully. I said the question is whether it was justified. TFA itself says some courts say no.
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Well it was quite particular as it was limited to the contents of a particular account and not every account possibly used by the defendant.
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but they'd certainly have enough evidence for a search, and they could keep a record of any potential weapons seen in the house in case forensics can later get them a better description of the weapon used.
They wouldn't have probable cause to visit every apartment in the building and cease every blunt object in the house from every tenant and take it to the lab for analysis. And from the public there is a simple answer to this illegal search behavior.... Jury nullification. If this person comes before a j
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They aren't searching every apartment in the building. They are leafing through every book in the apartment of the defendant.
Re:Warrants are supposed to be narrow (Score:5, Interesting)
As in this case, they'd have to get as narrow a warrant as possible, specifying that they're searching for the weapon and not, say, evidence of tax fraud. Of course, if they found readily-visible evidence of such fraud during the course of the authorized search, they are not required to ignore it.
This is the one spot where I trip up a little, and have to wonder if we need slightly different protocols. How does the plain-sight doctrine work for digital media? In effect, every single email is equally 'visible'. The analogy to a house in the real world breaks down utterly here, and it's not clear how to fix that. What happens if they find emails with evidence of tax-fraud? Were those emails in plain sight? I agree that the scope is entirely reasonable for the necessary search – but I have to wonder how they would handle evidence of something they had no justification to search for? Law enforcement's penchant for parallel reconstruction (aka perjury) suggests they are very likely to use this information. Perhaps if it were understood that any future evidence brought for a different crime, and for which the defendant could demonstrate there was evidence within the email trawl, were assumed to be poisoned fruit, then we might have some better assurances. But there are some pretty obvious flaws with that kind of approach too...
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A far better analogy is snail mail. The judge has granted the right to enter an unlimited number of recipients houses and recover mail sent to them. The real question is who owns that mail, the senders, the receivers, the handlers or the, the ISP. That is the tricky question with regards to email versus snail mail and that technically email should be legally treated exactly the same as snail mail because by and large that is the public expectation.
Re:Warrants are supposed to be narrow (Score:5, Insightful)
That's not completely correct. The Fourth Amendment was enacted specifically to prevent writs of assistance, which were commonly used in Britain to give law enforcement officers broad, nearly unlimited power to conduct searches for contraband or smuggled goods. The Fourth Amendment was enacted to prevent law enforcement officers from having this broad power to search anywhere and everywhere, even if there was reasonable evidence of a crime.
Part of the danger of broad writs or warrants is that (1) they unduly invade a person's fundamental right to privacy, and (2) the adoption of the plain view exception to the exclusionary rule will make you liable for anything the police uncover, whether it's related to the crime being searched for or not. So if the police go searching your hard drives for child pornography and uncover evidence that you bought some pot from a friend via e-mail, that evidence can and will be used against you.
You are correct in that a search may be so broad as to search for evidence of the thing to be seized. However, the presumption is and should always be tailored as narrowly as possible. Simply saying that the police do not know where the gun is does not give the police powers to search any property the suspect owns. The police may search his house and anywhere in it, but the boundaries must be narrowly tailored so as to survive constitutional scrutiny. In the case of e-mail, any communications with people not directly implicated or otherwise material to the crime should be excluded, as there is relative certainty that material information will not be communicated with these parties (for example, you aren't going to find evidence of child pornography in my weekly Mint financial statement updates or newsletters I receive). As such, it is likely that the scope of this warrant is over-broad.
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Specific place to search: the email account (or the house, in my example). Specific items to be searched for: evidence of money laundering (or a murder weapon).
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Precisely. This is akin to obtaining a generic search warrant and upon finding my 8" kitchen knife, seizing it to see who I might have stabbed with it. Nevermind if it's used and put away in a knife block or new in the package never used, the existence of said knife is not in and of itself evidence of anything. But not according to such a warrant.
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That would be fine, but what they actually asked for was the email account. Item to search for: Every email ever sent or received.
Re:Warrants are supposed to be narrow (Score:5, Interesting)
It always seems like you're on the side of the government, whether it's the NSA or what have you.
Often, yes. You see, I actually understand the design of the US government. It's built to continually revise and improve, and it's been doing so for over 200 years. On the other hand, your opinions have been forming for less than a century, and since you're only a single person, you've undergone far fewer revision cycles, all of which have been from a very limited perspective.
For example:
Also, any warrant asking to just search the entire house should be rejected, too.
Is that just, though? It may appeal to your sense of privacy, but would it appeal to your sense of justice to know that any criminal could effectively conceal evidence by simply putting it in a large enough box? How would your neighbors feel about it, knowing that you could be seen kidnapping their children, and the police could do nothing because they wouldn't know what room they're being held in?
Sure, the examples are hypothetical, but the underlying issue of deciding what is right predates your consideration by quite a long while. The best we have so far is a system where certain activities are absolutely permitted, and certain activities are absolutely forbidden, and deciding which category a given situation fits into falls to a judge whose primary interest is to bring the legal precedent closer to a state that everyone considers to be fair. It's not perfect, and likely will never be perfect, but it's closer than having Random Internet Guy simply decide that privacy trumps justice, because he says so.
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God, it's nice to see someone on here who doesn't think the government is a literal force of primal evil. Having even a little faith in the system seems to be thoughtcrime on internet boards.
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The problem is that one agent of it under reckless evil can undo the work of 100 agents working selflessly for good. And that's assuming the "good" agents don't collude to protect the bad apple.
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By tolerating the existance of the 'Bad Apples', the 'so-called Good Apples' aren't good. They're bad, too.
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Yes he recognizes that the characteristics defining the US government behavior have been in a state of change since day 1. Governmental changes are changed based upon the cultural, economic, and the basic societal environment that exists in each era. It's hard to critique and judge government actions and behaviors in the past by using today's moral, economic, average public mindset, and ethical standards .And a lot of people argue the changes taking place somehow represents a decline when in fact the US go
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Sounds like a statist. But having secret laws, secret courts, and vast portions of the government operate outside the consent of the governed isn't an improvement, it's anti-ethical to a democracy.
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Except that the warrant will allow for searching your house for missing Girl Scouts. The police searching cannot legally look anywhere too small to hold a very small Girl Scout, nor can they open photo albums or take them away.
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Except that was the point to begin with: warrants are limited in scope for a reason.
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Let's fix it: a nosy neighbor reports you to the police for luring the underaged to your house, and so the cops get a warrant and search it.
A tip usually isn't enough for a search warrant. There's a spectrum of how much proof is required. A search requires less than an arrest, but there's still a significant threshold to pass.
So they remove all your photo albums and find the pictures of you sitting on a couch made out of bags filled with marijuana
...and that might be enough for a new search warrant to look for drug paraphernalia.
and bring you up on drug charges
...which would require an arrest warrant, with an even higher burden of proof, and a prosecutor that thinks they can make a case on more than just a few pictures of you not even taken in your house.
That's not very Scottish, either.
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"be seen kidnapping their children..." maybe a couple of your neighbors telling the police that they saw YOU dragging the child into YOUR house is considered more than "a tip" by the majority of us possessing what we colloquially refer to as "common sense."
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Except cops and prosecutors do worse than that, with less evidence to start with, on a regular basis. [policestateusa.com] With "tips" based on information the cops either made up or acquired illegally, [wikipedia.org] and the judge signs off on the warrant using th
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Also, any warrant asking to just search the entire house should be rejected, too.
I'm no police apologist, but what you're saying is downright silly.
If the police have enough evidence that shows you own a firearm of the same caliber as the murder weapon, and some other evidence indicates you might be guilty (e.g., motive), then they shouldn't need to know what room in your house you keep your gun in order to get a search warrant.
In this case, if the police have enough other evidence that you have evidence of your money laundering in your GMail account, I don't see it unreasonable that th
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Sort of. But they should be required to narrowly specify the information that they are looking for, and have evidence that would lead a reasonable person to conclude it is probably there. And they shouldn't be allowed to record anything that doesn't match the items described in the warrant.
And I quote: "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him." -- Cardinal Richelieu
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They specified that they are looking for emails containing information related to the specified crime. If they notice other crimes in the emails, then the defendant's lawyers should (as in the the law and Constitution should be so interpreted) be able to have that evidence dismissed as having been illegally obtained. That seems to be a reasonable way to deal with this as they shouldn't be treated as being in plain sight but the police do need to perform the search.
Re:Warrants are supposed to be narrow (Score:5, Informative)
The investigation is for money laundering. It's not hard to imagine setting up a laundering channel months or years in advance, by conspiring with someone to accept a transfer of money and forward it on to some other conspirator.
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I'm not a money launderer, but if I was, I think my laundering channel would be pretty well hidden.
Maybe if I didn't know how to set up such a channel, I wouldn't be gainfully employed in computer security and would have to turn to money laundering.
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Re:Warrants are supposed to be narrow (Score:4, Insightful)
How does this differ from a typical search warrant for a premises? While you can get a search warrant to search "room X at property Y", more often than not the search warrant is for "property Y", which is exactly the same as a gmail account in entirety.
Minimally invasive searches (Score:5, Informative)
How does this differ from a typical search warrant for a premises?
It might not be any different. However even a warrant for a premises is not (supposed to be) without limits. If the information sought can be reasonably obtained through less intrusive means then it is supposed to be obtained through those alternative means. If the cops are interested in someones google account (or hard drive - same principle) because they have credible suspicion about information that may be contained there then a warrant is fine but only to the extent necessary to search for and safeguard the information sought.
Basically if the judge is saying that searching an entire account is appropriate merely because there is a chance investigators might miss something then there is a problem. The entire point of a getting judicial review prior to a search is so that searches do not become wider than absolutely necessary. Part of that is so that people don't become accused of crimes they otherwise would not have been under suspicion of. Giving carte-blanche to search someone's google account in many cases is opening up their entire life to a search so there had better be a damn good reason to permit a search that broad.
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Any other crimes they find, they can't use. That is how warrants work. They are searching all of the person's email for content related to the crime they are investigating. Anything else, whether they see it or not, is inadmissible.
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I'm not being pedantic here. Searching a house and an email account are not the same, and trying to make an analogy will generate questions based on what people know about the house scenario.
Consider a file cabinet of all correspondence, and the judge allowing a copy of every paper retained for evidence. You can't take everything just in case. But is this different because its a copy instead of taking the original?
Hint, there is a big difference between search and seize. It should be clear now.
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No, it is more like a search warrant to search the cabinet for a document containing evidence that the defendant communicated about the crime with someone else (a letter or a written description of what they were stealing, etc.). The police would have to look at every document in the cabinet to find the one they were looking for unless the defendant was extremely well-organized and had everything extremely well indexed, etc.
I'll agree that they should be required to delete all irrelevant emails after lookin
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You also need to describe what you are searching for. It needn't be an EXACT description, but should be as narrowly constrained as possible. For example, you might search for 'the object that bludgeoned john doe", a bloody baseball bat, a handgun, etc.
Re:Warrants are supposed to be narrow (Score:4, Insightful)
The New York court, in contrast, granted on June 11 a warrant that permitted law enforcement to obtain emails and other information from a Gmail account, including the address book and draft mails, and to permit a search of the emails for certain specific categories of evidence.
They only have permission to search for certain specific categories of evidence, despite having the entire archive, so they wouldn't be able to find them guilty of some minor illegal activity unless it was part of the specific categories the judge authorised.
Have you ever tried to find something in your email account that you know is there but couldn't locate it using any search terms that came to mind, only to find it later along with something completely unrelated? How hard do you think it would be to describe to a Google employee the type of information you want them to search for in (likely) thousands of emails and get a perfect success rate (assuming, perhaps incorrectly, that that's the only satisfactory outcome)?
Responding to the opinion by the District of Columbia court that gave the government the option of getting the email host to search the emails, Judge Gorenstein wrote that Google employees would not be able to arrive at the significance of particular emails without having been trained in the substance of the investigation.
"While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so," he wrote.
It seems to be the same thing, to me. So we have limitations to the type of evidence that may be acquired, and the ability to find that evidence using people with intimate knowledge of the case (as opposed to a corporation's employee).
I don't get the fuss, it's not like you have some right to hide suspected (they got a warrant) illegal activities just because they're recorded in an email archive stored somewhere other than your computer's hard drive. The only problem I have with it could be described as a slippery slope fallacy [yourlogicalfallacyis.com]; that is, maybe the rules will become more relaxed over time as more judges build on this case. But that's somewhat pointless speculation at this point; this judge seems to be quite sane.
Limitations on law enforcement (Score:4, Insightful)
Have you ever tried to find something in your email account that you know is there but couldn't locate it using any search terms that came to mind, only to find it later along with something completely unrelated? How hard do you think it would be to describe to a Google employee the type of information you want them to search for in (likely) thousands of emails and get a perfect success rate (assuming, perhaps incorrectly, that that's the only satisfactory outcome)?
Law enforcement is not entitled to a perfect success rate. If they have evidence that justifies searching an entire account then fine but I defy you to come up with more than a handful of cases where such a blanket search is not a violation of the Fourth Amendment. We put limits on law enforcement because law enforcement has a LONG history of abusing power. The majority of the Bill of Rights is devoted to limiting the power of law enforcement. We put these limits in place knowing full well that the result will be that some guilty people go free because the alternative is to convict innocent people. The job of law enforcement is not supposed to be easy or convenient.
I don't get the fuss, it's not like you have some right to hide suspected (they got a warrant) illegal activities just because they're recorded in an email archive stored somewhere other than your computer's hard drive.
Strawman argument. The question is whether the warrant and the activities permitted are appropriately narrow to the circumstances. If they are then all is well. If the warrant allows a fishing expedition then it is an abuse of the judicial process. If the search criteria that can be justified is too narrow to result in information useful for a conviction then that is just too bad. If they don't have enough evidence to convince a (properly behaving) judge that a wider search is necessary then that is how the system is supposed to behave.
The only problem I have with it could be described as a slippery slope fallacy; that is, maybe the rules will become more relaxed over time as more judges build on this case.
It's not a slippery slope problem. The problem is that there is relatively little guidance on what the rules and parameters regarding these sorts of searches should be because the technology of online accounts has advanced somewhat ahead of the law. Could be that the warrant issued was perfectly appropriate to the circumstances. However the justification was given that "investigators might miss something" which is alarmingly insufficient. Yes, they might miss something and unless they have evidence to justify a very broad search then they should have to use less invasive means even if that means they might miss something. Better that 100 guilty men go free than a single innocent man be wrongly convicted. Searching someone's entire Google account is a very invasive search and there had better be a very good reason to allow it.
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I think it is easy to imagine circumstances where what you call a 'blanket' search - a search for specific categories of evidence, but which isn't limited by particular approved keywords - would be justified. I would expect it to be common, because I would expect it to be the only reasonable way to conduct the search in a great many cases.
I am a litigator. We regularly conduct similar searches during what Americans would call discovery - the pre-trial process where you look for evidence. Even if you know ex
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How hard do you think it would be to describe to a Google employee the type of information you want them to search for in (likely) thousands of emails and get a perfect success rate (assuming, perhaps incorrectly, that that's the only satisfactory outcome)?
Not all that hard really. I agree with you in that you probably can't go specifying search terms because all it would take is a few code words having been used and you really might miss what you are looking for. That said a lot of people now have a decade of correspondence in Gmail. I think "the entire mailbox of" is a little to broad for a warrant. Its not fair to just open up all of someones papers for their entire life for investigation.
I would expect in almost every situation there would be *some* c
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Its not fair to just open up all of someones papers for their entire life for investigation.
OK, how about this physical example where you have a filing cabinet which contains papers that have written on them evidence of a crime. The police execute a warrant to search through the filing cabinet for those papers, and take only those papers concerning the crime.
But, but must read every paper to determine if that particular paper has the evidence they are looking for. So, your "entire life" has been exposed. Nothing except what concerns the exact crime on the warrant can ever be used against you in
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Can you imagine the outcry of "invasion of privacy" were the police to explain all the details of the case to Google employees?
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I imagine searching an entire hard-drive would be broad enough to catch most /. users.
I am not a lawyer but as far as I know, search warrants are tied to a specific crime. Any evidence of any other crime is inadmissible in court. Of course, if investigators stumbled on evidence of something like terrorism your still likely to end up in Gitmo.
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As far as I know, if the police come across evidence of another crime while legitimately executing the original warrant, they are allowed to act on it. I don't think there's any court tests of this happening in disk or email searches, but IANAL.
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I dunno, the judge is right that warrants are granted for things like "Contents of X", including when X is a hard drive. Why is this materially different? Gmail holds ~7GB of email, I know people with PST files over 7GB.
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Used to have that too. Strange thing was, the PST file only held a few hundered Emails.
At one point Outlook wil probably block the PC for a few hours and do a 6,9GB garbage collection.
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Ummm, isn't that PRECISELY the point? If the search criteria isn't sufficiently broad to catch someone then that means they don't have enough evidence to be conducting the search in the first place. Almost everyone can be found guilty of some illegal activity (however minor) if the search parameters are sufficiently broad.
Genuine question. If I employed the services of a company specializing in archiving paperwork, and the government had a search warrant for potential evidence in their case which could be contained in that paperwork, wouldn't the prosecutor (or at least someone working under the prosecutor's direction) be the one looking through it? As the argument goes so many times against the government's practices, why should we expect that, in the case of email, searches should operate substantially differently than wit
Well, it *is* consistent (Score:3, Insightful)
If it's okay to go through someone's locally-stored data, why not their remotely-stored data? It's not like there's a fundamental difference. If there were such a difference, then using the cloud would be a perfect "you can't get me" loophile.
How narrow is the search? (Score:3)
If it's okay to go through someone's locally-stored data, why not their remotely-stored data?
The question isn't local versus remote. The question is narrowly tailored search versus fishing expedition. If they have enough evidence to justify a search of someone's entire account (or local hard drive) then it shouldn't be hard to convince a judge to issue a warrant with those search parameters. However warrants should be as as narrowly defined as possible based on the available evidence. If you suspect someone of burglary that likely does not constitute sufficient grounds to search their hard driv
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Good point, because this is a slippery slope.
The scary thought is that the government could get a warrant to confiscate ALL of a suspect's stuff on the grounds that evidence may exist in the defendant's truck, house, place of business, in the form of data that exists anywhere ...
To me, the government is saying, "We don't have enough on this guy, so give us everything he's got and maybe we can make a case."
And maybe not.
You are correct that it's a fishing expedition.
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The police certainly can bust you if they find something else while searching for your house for {something _else}, provided that {something_else} was found while legally executing the original search.
If the police have been following your bookmaking or money laundering operation for some time, and they come to your house with a nice broad warrant to collect all files, records and ledgers, they can still bust you for the marijuana grow room they walk into while looking for file cabinets.
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IANAL, TINLA
The common argument here is that police can always find something. Any car can be pulled over, but it *generally* takes a fairly lengthy investigation for them to obtain a search warrant your house (if you didn't already let them in the door).
Probably the example I can think of with the least work would be search warrants based on power usage to find marajuana grows, but even those seem to be corroborated with routine investigative work -- or at least tips from disgruntled customers or smaller
Example of slippery slope (Score:4, Interesting)
Judge Gabriel W. Gorenstein argued that a search of this type was no more invasive than the long-established practice of granting a warrant to copy and search the entire contents of a hard drive, and that alternatives, like asking Google employees to locate messages based on narrowly tailored criteria, ....
So, if a judge years ago did not allow the searching of a hard drive, this judge wouldn't have anything to stand on.
See, when the cops are allowed to do something seemingly little, then it allows for something else seemingly little, and so on and so on.
Our freedoms and liberties are being chipped away everyday.
Back during the Bush admin when folks were cautioning about the increased Executive powers, they were labeled "UnAmerican", "Liberal" or some other non-sense. When it was pointed out that the next Administration would get those same powers - meaning a Democrat may get them (and did) - it went over their heads.
And then there are the folks who discount the "Slippery Slope" argument as a logical fallacy.
Well, here you go.
I am concerned as to how far this will go in the future. And I hope the ACLU and EFF is all over this.
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So, if a judge years ago did not allow the searching of a hard drive, this judge wouldn't have anything to stand on.
Or, the judge in this case would have set that precedent using the same reasoning that judge years ago did.
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> Just because a corrupt judge signs off on it, doesn't make it legal.
Actually, when a judge signs off on it, like it or not, the warrant by definition becomes legal.
" and particularly describing" (Score:1)
The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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That's a pretty big place to be called "particularly described".
OTOH, it looks as if they are only allowed to look for evidence of one particular kind of crime. That narrows it a bit, if the restriction can be believed. Unfortunately, a lot of instances of "independent construction" have come to light, which shed a lot of doubt on how well this kind of restriction is enforced. (True, this case doesn't involve the spooks, but the same processes can be used.)
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and the persons or things to be seized.
from what I have read, they do not specify the person or things to be seized except "everything".
In my mind, "No Check".
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from what I have read, they do not specify the person or things to be seized except "everything".
We don't know that, as nothing has reported what they can "seize", only what they can "search". They are permitted to search the entire account. My guess would be that prosecutors would then take everything they found which they believed was relevant and bring it before the judge, who would then give the yes/no for each piece, seeing as how that's how evidence works in every case.
Also, if the government has some sort of injunction to prevent the defendant from using the account (reasonable, since they cou
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My understanding is that they are supposed to know enough about what they are looking for to say what it is.
Is it how evidence works in every case?
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The warrant in question describes the gmail account to be searched, based upon probable cause.
The Bill of Rights ensures due process, it doesnt say that you can use Gmail as a shield for illegal activity.
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So now it just needs to describe particular things to be to be seized. Everything is too broad.
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You do realize that authorities have ALWAYS been able to "look in medicine cabinets and underwear drawers", if they had probable cause and were issued a warrant by the courts?
Yall need to go home, this isnt the "government overreach" story you're looking for.
Is it the same? (Score:2)
Isn't all criteria, by definition, more narrowly tailored than no criteria?
In your house, you can throw out things and hide others in a secret place, on your hard drive you can throw out things and encrypt others.
Does this Gmail account allow you to throw-out and hide things? Is it really analogous?
As the old song goes (Score:2)
I'm wary of the slippery slope fallacy, but this seems like a genuine example of an instance where a slightly troubling activity - keeping images of people's entire hard drives - has led to a broader and more troubling one.
And if you tolerate this,
Then your email will be next
Will be next
Will be next
Will be next
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That's just it. Slippery slope is often NOT a fallacy. Anywhere where precedent is followed, such as law, permits a logical argument behind the slippery slope. Anything involving human psychology (boiling the frog) likewise.
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The trouble is, this isn't the usual slippery slope. This started out as a reasonable legal procedure back when hard disks were small. The slippery slope was the storing more and more of personal history in digital forms. Originally allowing all digital media to searched was reasonable. Now it's quite a bit less so. Next year it will be worse.
(What was unreasonable before is that they would seize the hardware and keep it to punish the accused, often never getting around to actually filing a case.. The
Two sides to this... (Score:3, Interesting)
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Thing is, that's not actually so bad to me at all. If you could tell whether someone was lying or telling the truth about performing some illegal act--and be certain of it (big assumption)--I'd wholeheartedly support it. It would catch criminals a lot faster, and exonerate the innocent a lot faster, what on earth could be bad about that? As you're describing it, it doesn't sound like it's violating any privacy of yours, except for the specific fact "did you commit the crime". It's just a one-shot perfec
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You have a lot more faith in the integrity of the government than I do.
Stop copying hard drives too! (Score:5, Insightful)
no more invasive than the long-established practice of granting a warrant to copy and search the entire contents of a hard drive
This "long-established practice" has always been a violation of the 4th amendment. The recent case where the US government used hard drive data from a *different* case [slashdot.org] is proof that they should not do this. They should never get the entire hard drive contents. A neutral 3rd-party should copy the drive, perform an appropriate search, then erase the copy. There's no reason for the government to indefinitely hold copies of data they should never have had in the first place.
Just imagine if they had a warrant to get your address book, but they kept a copy of every piece of paper in your entire home, just in case it became relevant later. There is no way that would be allowed. But the digital equivalent is somehow acceptable.
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A neutral 3rd-party should copy the drive, perform an appropriate search, then erase the copy.
The police are that neutral third party. Clearly they are not you, and they are also not the people who accuse you (or the prosecutor representing the people).
A large part of our justice system is focused on keeping them neutral. The fact that the investigators did not erase their copy, but rather retained it, is why the appeals court in that case reversed the judgement.
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I thought the judged dinged them only for using the data, not retaining it. I am under the impression retaining it is standard practice. Is that not the case?
Who holds and filters the data in a civil case?
Re:Stop copying hard drives too! (Score:4, Insightful)
Police are not a neutral third party. They are paid by the same state that pays the prosecutor and the judicial system. Neutrality in that setting is legal fiction.
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Who else is going to pay the neutral third party? The tooth fairy?
Whoever you choose is going to be paid by the state.
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If the police enter your house on spousal abuse and see a pound of coke on your coffee table, you're still going to arrested for both. If you wanted to be a smart criminal, learn to segregate your data better, stupid.
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The rules are completely different when warrants are involved.
No limits on storage or security (Score:2)
What really disturbs me about this article is how the judge set no limits on how long the police can retain copied emails or how they have to store them. Judging by the way the police act, I wouldn't be surprised if this meant large, permanently-retained NSA style databases of captured emails.
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Judging by how the police actually operate, a hard drive with that data will be put in a box and put into storage with a large collection of other such boxes, probably never to be seen again.
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"Top men."
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The court actually took a pretty sensible view on this, I think.
The judge's reasoning was that the use of data that was recovered and stored was (as a matter of law) subject to the same test of reasonableness as what could be recovered in the first place. He considered trying to decide how long was reasonable now, but decided that he wasn't in a position to do so, since he didn't know how the investigation would go. Better for a later court, looking back on all the facts, to decide whether what was done was
Currently not the biggest problem (Score:4, Insightful)
With several gouvernment agencies currently ignoring constitutional rights, specific warrents effecting specifically named persons, issued and overseen by judges, are NOT the biggest threat to privacy.
Unconstitutional (Score:2)
This is unconstitutional under the fourth amendment.
There is no difference between this type of search and a Writ of Assistance, which is precisely one of the reasons that the U.S. Constitutions Fourth Amendment was written.
http://en.wikipedia.org/wiki/W... [wikipedia.org]
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Let's not exaggerate about "no difference". Writs of assistance, and searches in general, back in the revolutionary days were highly disruptive to life and business. If someone copies out your entire gmail folder you probably won't notice it, it's not like they'll be taking up space and getting in your way and throwing your files around as you try to read it yourself. They were even used to gain entrance to a place and trash it under the guise of a search.
I'm not making a value judgment on the merits of
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You might want to look at some house after the police have searched it, if you don't think they are still extremely disruptive. They are generally worse if they don't find what they hoped to find. Wantonly destructive is not always an overstatement.
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"No difference"?
[Writs of assistance] were permanent and even transferable: the holder of a writ could assign it to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the law. [Wikipedia]
[The court grants] a warrant to obtain emails and other information from a "Gmail" account, which is hosted by Google, Inc., and to permit a search of those emails for certain specific categories of evidence. [Judgment in this case]
Yep, exactly the same...
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They'd presumably just seize the server as evidence.