4. Any and all list of names, telephone numbers, and addresses stored as contacts to include pictures.
bJ
5. Any and all names of persons [sic] has contacted recently contacted [sic] through calls and text messages
6. lmages. picturcs_ photographs sent or received by user.
7. The content ofany and all text iiiessages sent or received by user.
8. The content of any and all voice mail messages
9. All visual depictions ofchildren, engaging in sexually explicit conduct, as
defined in Title 18 U.S.C., § 2256. and child erotica, clothed or unclothed. l0. Any and all evidence ofpasswords needed to access the user cell phone.
As used above, the terms records and information include all ofthe foregoing
items of evidence in whatever form and by whatever means they may have been
created or stored, including any form of computer or electronic storage (such as
flash memory or other media that can store data) and any photographic forin, Aftidavit at ll.
II. Inaccurate Boilerplate Language in Magistrate Case Nos. 14-238-40
ln the governinent"s Applications, the purpose ofAttachinent B is to specify what the government will actually seize from each device. g Aftidavit at l l (entitled "Specific ltems to Be Seized"). Three ofthe Applications are for cell plioiies,4 and the other three are for hard drives.$ However_ Attachment B is identical for each device_ regardless ofits use and function.
Despite this_ it is evident to the Court that the Attachinent B used in these Applications is only applicable to cell phones. Attachment B asks for "/\ll records contained in the cellular
telephones . . ," § lt also specifies that the govei'nineiit will seize specific information including,
inter alia, "text and instant inessages." "names, telephone iiuinbers, and addresses." "|t]he
il\/lagistrate Case. Nos. l4-235-237. ° l\/lagisti'ate (.`ase. l\los 14-238-240.
'~4)
content ofany and all text messages" and "[t]he content of any and all voice mail messages." l_cL Because the government has clearly submitted the wrong Attachment B for l\/lagistrate Case Nos. 14-238~240, those warrants must be denied. 'l`he government has once again used forinulaic language without careful review. §eg ln the l\/latter ofthe /\pplication ofthe United States of America for an Order Authorizing Disclosure ofHistorical C`ell Site information for Telephone Nuinber |Redacted|, l:l3-l\/lC-199. 1:13-1\/1€-1005. 1:13-1\/1€-1()06. 2013 WL 7856601. at *4 (D.D.C. Oet. 31, 2()13) (Facciola, l\/l.l.) ("Geiieric and inaccurate boilerplate language will only cause this Court to reject future § 2703(d) applications."). III. Tlie Governmcnt’s Applieations Are Overbroad With respect to the three Applications that do have an appropriate Attachment B_ the
government seeks to seize data that are outside the scope of its investigation and for which it has not established probable cause. The government is investigating the distribution and possession of child pornography Some ofthe items listed in Attachment B that it wishes to seize. such as items l.l’ 2,7 3_8 9.9 and 10,… are appropriately within the scope ofits investigation.ll Based on the Application, it has established probable cause for those items.
'fhe government has not. however. established probable cause for the broad seizure of
data in items 4,'2 5, l$ 6,ll 7,l5 and S,l° Witli one simple modii‘ication, these Applications would
6 1. An_\' iiiforination. including text and instant messages. relating to the transportation. ti'avel. enticement. or sexual conduct involving a minoi".
7 2 E\ idence of user attribution showing who had dominion_ o\\nership. ctistod_v. or control ofthe dev ice at the time the coinmunications described in this \\arraiit \\erc ereated. edited. or deleted. such logs. phonebooks. saved usei'names and pass\\ords. documents_ and bi‘o\\ sing histoi‘_\_
8 3 Recoi'ds and things c\ idcncing the use of an_\ lnternet Protocol address to coinmunic'.ite with the victim or her parents through e-mail or te\t. including: (a) records of lnternet Protocol addresses used: (b) records of lnternet acti\ ity. including tire\\all logs. caches. bro\\ ser history and cookies_ bookmarked or fa\ orite \\eb pages. search terms that the user entered into any lnternet search engine. liles uploaded and records tifuser-t_\ ped web addresses
9 9. All visual depictions ofchildreii. engaging in sexually explicit conduct. as delined in Title 18 U.S.(`.. § 2256. and child erotica_ clothed or unclothed.
lo lO. /\n_\ and all e\ idence of passwords needed to access the user cell plione.
ll These "items" refer to the numbered entries on /\ttachiiieiit B. §§ Aflidavit at l 1.
lz 4. /\n_\ and all list ofnames. telephone iiunibers'. and addresses stored as contacts to include picturcs.
have avoided the overbreadth problem: seize this information only insofar as it pertains to violations of 18 U.S.C. §§ 2252(/\)(2) and 2252/§(;1)(5)(13). However, no such liinitation currently exists. lnstead, the government apparently seeks to seize the entirety oftliese phones, including all coinmunications. regardless of whether they bear any relevance whatsoever to this investigation. lfthis were not the intention then Attachment B would not begin by saying that the government wishes to seize "[a]ll records . . . including . . by using the term "incltiding," the Applications make the seizure list broader than the categories that are specifically listed. at l1.l7 That is precisely the type of"geiieral, exploratory rummaging in a person’s belongings" that the Fourth Amendment prohibits. Coolidge v. N.H., 403 U.S. 443, 467 (1971).
lfthe government intends to resubmit these Applications, it must be more discriminating when determining what it wishes to seize, and it must make clear that it intends to seize only the records and content that are enumerated and relevant to its present investigation. ln their present state, however. the Applications are impermissibly lacking in specificity as to what exactly will be seized and are therefore overbroad. lx
IV. The Present Applications Risk G0veriiment Overseizure This matter presents the Court with a Fourth Amcndmcnt oddit_\i'. Pursuant to a search and
seizure warrant ofthe Solomons_ l\/laryland hotel room_ thc government seized the cell phones
ll 5. Any and all names of persons [sic] has contacted i'eccntl_\ contacted Isic] through calls and text messages
m 6. lmages. pictures. pliotograplts sent or received by usci'.
l§ 7. The content ofany and all text messages sent or received by user.
l(° 8. 'l`he content of any and all voice mail messages
ll Although this Court generally distinguishes between "reeords" and "content." as in 18 U.S.C. § 2703. it is evident that these Applications include both records and content under the term "records."
lg Case law on this issue is primarily concerned with an overbroad .s'ecu'ch. S_eg United Statcs v. Richards. 659 F.3d 527.5'-11-42 (J`th Cir. 201 l) ("['fhe warrantl \\ as not unconstitutionally overbroad The scope of the warrant was restricted to a search for evidence ofchild pornography crimes and did not permit a free-ranging search."); § all United States v. Burgess. 576 l~`.3d 1078. 1091 (10th (`ir. 200‘)) ("l\)|ui' case la\\ requires that warrants for computer searches must 'af`liriii'ati\ ely liinit the search to e\ idence for specific federal crimes or specific t_\ pes ofmaterial "`). Hei'e. the governinciit \\ arits to .ie/:e an inordinate ttmouitt of iiiatci‘ial. 'l`he concern regarding sewing is the same as \\ith searching in Ricliai‘ds and Huri»ess beeausc. of`course. in order for the governinciit to .s'e/:e some subset ofdata froin these cell phoncs. it must first .rezz/‘ch the plioites.
that are the focus ofthe present Applications. w § Affidavit at 8. As a result, those phones are clearly already "seized" \vithin the meaning oftlie Fourth Amendment. §§ Brower v. Cnty. of l_nyQ, 489 U.S. 593, 596 (1989). Now, though, the government seeks a second search and seizure warrant to examine the contents ofthese phones /\ssuming that the "search" does not occur until the contents ofthe phone are examined_ Orin l\'err. Searehes and Seizures iii a Digital World, 1 19 Harv. L. Rev. 551, 551 (2005). the governineiit`s Application-which specifically asks to seize the data that is in reality. already seized-is operating tinder the implied assumption that the contents are not currently scized.
The best way of resolving this constitutional oddity is by treating these Applications as requesting additional warrants under United States v. 'famura, 694 F.Zd 591 (9th Cir. 1982) and its progeny, including United States v. Hill. 459 F.Sd 966 (9th Cir. 2006) and United States v.
Comprehensive Drug Testiiig_ lnc.. 621 F.3d 1162_ 1180 (9th Cir. 2010). ln Tamura, the Ninth
Circuit addressed what should occur when "documents are so intermingled that they cannot feasibly be sorted on site." Tamura. 694 F.Zd at 595. 'l`he court "suggest[ed] that the Government and law enforcement officials generally can avoid violating fourth amendment rights by sealing and holding the documents pending approval by a magistrate ofa further search." l_d_. at 595-96. Although Tamura was primarily concerned with the removal of computer storage devices away from the site where the initial search and seizure occurred, the general overriding principal of these cases is that_ ifthe government wishes to perform a "vvltolesale seizure_" it must "justify it to the inagistrate." Sle §ij_ 459 F.Sd at 976-77.
The bottom line is this: even though the cell pliones are currently seized by the
government, the government must still explain to the Court what the basis for probable cause is
lg Although the Applications mention that warrant. this Court has not seen a copy ofit and it is not part ofthe record in this mattci'.
to search for each thing it intends to seize. and it must explain how it will deal with the issue of intermingled documents. Because the government has come to ask for a search and seizure warrant, it can only address these issues by explaining in a revised application its intended search protocol. The l\linth Circuit has expressed repeated concern that some sort of search protocol may be needed ifthere is concern about the governinent "overseizing data and then using the process ofidentifying and segregating seizable electronic data `to bring constitutionally protected data . . . into plain vievv."` United States v. Schesso. 730 F.3d 1040, 1047 (9th Cir. 2013) (eiting Comprehensive Drug Testiiig. 621 l’.3d at 1047). That same concern is what aniinates the Court`s present ruling.
The Court is tinaware ofany appellate decision that reqtti're.s' a search protocol before a warrant may be issued. §e§, §§ l_l_M. 459 l~`.3d at 978 ("/\s we have noted. we look favorably upon the inclusion ofa search protocol; but its absence is not fatal."). And many courts have expressed legitiinate concerns about hainstringing a valid criminal investigation by binding the governinent to a strict search protocol ex ctnte. §_e_, Burgess, 576 F.3d at 1094. Certainly, something like searching only for JPEGs or the term "sex" would be abstird. But the Court will require the government to give some indication of how the search will proceed. Will all ofthese devices be imaged‘? For how long will these images be stored? Will a dedicated computer forensics team perform the search based on specific criteria front the investigating officers of what they are looking for, or will the investigating officers be directly involved? What procedures will be used to avoid viewing material that is not within the scope ofthe warrant? 1f the government discovers unrelated incriminating cvidence, \vill it return for a separate search and seizure \varrarit? §_e_e g at 1095 (the searching officer "elosed the gallery view when he
observed a possible criminal violation outside the scope ofthe warrant`s search authorization and
did not renew the search until he obtained a new warrant."). These types of issues must be addressed. ln the context ofan e-mail search. this Court recently determined that the third-party
provider must perform the search unless the government can suggest a sufficient alternative. § ln the l\/latter ofthe Seareh of` Inforination /\ssociated with [REDAC'l`ElQ@l\/lac.coin That is Stored at Premises Controlled bv Apple_ lne., l\/Iag. Case No. 14-228 (D.D.C. l\/Iar. 7, 2014).20 Unless the government follows judge Alex l'\'ozinski`s suggestion that "[s]egregatioit and redaction of electronic data must be done either by specialized personnel or an independent third party," that type of option is not available here. Comprehensive Drug Testing, 62| F.$d at 1180 (Kozinsl
V. The Government Fails to Explain What Will Occur to Data Outside the Sc0pe of the Warrant
The related question to the overbreadth issue-and one that was touched on in Tamura and in this Court’s opinions~is what will occur with data that is seized by the government and is outside the scope ofthe warrant. S_ee Taintira, 694 F.Zd at 595. In 'l`ainura, the government acted improperly by not returning documents that were seized but "not described in the \varrant." § at 596. Will such information be returned. destroyed, or kept indefinitely? 'l`he government must specify what will oecur»although it is admonished that any response other than "the information will be returned or. if`copies. destroy'ed" within a prompt period of`time will likely find any revised application denied. § In the Matter ofthe Seareh oflnformation Associated
with the Facebook Account identified bv the Username Aaron.Alexis That ls Stored at Premises
30 https://\\ \\ \\ .dcd.uscotirts.go\‘/dcd/sites/dcd/fi les/l 4-228.1 lvf l’.pd l`
Controlled bv Facebook$lnc.. l3-l\/lJ-742. 2013 WL 7856600. at *7 (D.D.C. Nov. 26, 2013)
(Facciola. l\/I.J.). VI. C0nelusi0n
For the reasons stated above, it is hereby ORDERED that the government’s Applieations
are DENIED without prejudice _ _ _ Digitally signed by john l\/l.
Facciola
DN: c=US, email=john_m._facciola@dcd.u scourts.gov, o=United States District Court for the District of Co|umbia, cn=lohn l\/\. Facciola Date: 20l4.03.ll l6:52:l 7 -04'00'
JOHN l\/I. FACCIOLA UNITED STATES l\/IAGISTRATE JUDGE
SO ORDERED.