Today there was a big decision (both metaphorically and literally – the decision runs 104-pages) from the Second Circuit in United States v. Ganias about search warrants in an age of digital data. In Ganias, the government seized and made identical copies of three hard drives that belonged to an accountant, Stavros Ganias, pursuant to a warrant (the “2003 warrant”) in a fraud investigation. The government continued to hold the files, even after reviewing them for all relevant information contained in the 2003 warrant. In 2006, the government obtained a second warrant (the “2006 warrant”) as part of an IRS tax evasion investigation and they searched the files anew pursuant to that second warrant.
There were two questions presented:
- Whether the fourth amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard drives for over two and half years, and then searched the non-responsive files pursuant to a subsequently issued warrant.
- Considering all relevant factors, whether the government agent in this case acted reasonably and in good faith such that the files obtained from the cloned hard drives should not be suppressed.
In 2014, a panel of the Second Circuit (Hall, Chin, and Restani) ruled that the government violated Ganias’s Fourth Amendment rights when it seized records from his personal computer and retained them for more than two years based on the 2003 warrant. The Court held that the government may not “possess indefinitely” those records that were beyond the scope of the 2003 warrant, even in light of the 2006 warrant. 755 F.3d 125 (2d Cir. 2014). You can also find analysis of that decision here.
The Second Circuit decided to rehear the case en banc. That decision came down on Friday and can be found here.
The majority in Ganias did not reach a decision on the Fourth Amendment issue and instead found that the evidence should not be suppressed based on the good faith exception. Under the good faith exception, even where the government violates the Fourth Amendment, the exclusionary rule will not apply if the government was acting in good faith on what appeared to be a valid warrant.
“As we have said, we need not resolve the ultimate question of whether the Government’s retention of forensic copies of Ganias’s hard drives during the pendency of its investigation violated the Fourth Amendment. We conclude, moreover, that we should not decide this question on the present record, which does not permit a full assessment of the complex and rapidly evolving technological issues, and the significant privacy concerns, relevant to its consideration. Having noted Ganias’s argument, we do not decide its merits. We instead turn to the question of good faith.”
In finding that the agents actions fell within the good faith exception, the court pointed to a few facts, including that the agents sought the initial warrant in 2003 and searched the records only within the boundaries of that warrant and that they “minimized the disruption to Ganias’s business” by taking the identical copies. The Court found that “this case fits squarely within Leon [,468 U.S. 897 (1984),] so that, assuming, arguendo, that a Fourth Amendment violation occurred, suppression was not warranted.”
Although the Court did not reach the Fourth Amendment issue, it did provide 20-plus pages of observations on computer searches. Start at page 24 of the link above for these observations and lots of good sources for research on the Fourth Amendment in the age of digital data. But, ultimately, the Court provides no holdings as to the thorny legal issues that surround the very real problem of the government over-seizing data pursuant to warrants.
Surprisingly, there was only one dissenting voice on the Court. It’s worth noting the final paragraph of the dissent by Judge Chin, who authored the 2014 opinion:
“Ganias’s non-responsive files are in the Government’s custody still. What began nearly thirteen years ago as an investigation by the Army into two of Ganias’s business clients somehow evolved into an unrelated investigation by the IRS into Ganias’s personal affairs, largely because the Government did precisely what the Fourth Amendment forbids; it entered Ganias’s premises with a warrant to seize certain papers and indiscriminately seized – and retained – all papers instead. I respectfully dissent.”
For more analysis of the decision, see today’s New York Law Journal.