I’m working on a new law review article about the internal procedures that Internet providers follow when executing search warrants for content. Given that, I was particularly interested in this new decision from a magistrate judge in Alaska relieving Google of a duty to execute a warrant by combing through stored files for relevant content.
The case involves a search for evidence in e-mail accounts that were used to respond to a Craigslist advertisement about underage sexual activity.
[T]he contents of electronic or wire communications held in the SUBJECT ACCOUNTS, including:
a) all electronic or wire communications with a minor or any person purporting to be a minor, or claiming to have access to a minor, or that otherwise involve the enticement of a minor to engage in sexual activity for which any person can be charged with a criminal offense (including email text, attachments, and imbedded files) in electronic storage by the PROVIDER, or held by the PROVIDER as a remote computing service (if any), within the meaning of Stored Communications Act;
No special protocol required for a computer search warrant, but vigilance of the court is expected in review to protect against overreaching. Also, the least intrusive measures are required. United States v. Nessland, 2015 U.S. App. LEXIS 7360 (9th cir. May 4, 2015):
It did not specify “‘the precise manner’” of execution, but it was not required to do so. United States v. Grubbs, 547 U.S. 90, 98, 126 S. Ct. 1494, 1500-01, 164 L. Ed. 2d 195 (2006). The officers were searching for a particular type of photographic image and came across the images in question here, which were in plain view. See United States v. Wong, 334 F.3d 831, 838 (9th Cir. 2003). Thereupon, they stopped their search, and did not return to it until they obtained another warrant that covered the new type of images. See United States v. Giberson, 527 F.3d 882, 885, 889-90 (9th Cir. 2008). That approach did not violate Nessland’s rights. Indeed, this case is much like United States v. Schesso, 730 F.3d 1040 (9th Cir. 2013). There, as here, no special protocol was required, and the officers did follow the procedures set forth in the warrant application. Moreover, as here, there was no real risk of exposing other people’s data, and there was no sign of overreaching. Finally, even if some added protections could have been used here, the officers were not required to seek out and use the least intrusive means. See City of Ontario v. Quon, 560 U.S. 746, 763, 130 S. Ct. 2619, 2632, 177 L. Ed. 2d 216 (2010); Quon v. Arch Wireless Operating Co., 554 F.3d 769, 772-73 (9th Cir. 2009); see also Giberson, 527 F.3d at 889-90. While we are well aware of the need for vigilance, [citing CDT] we are satisfied that Nessland’s rights were not violated by the search.