by Douglas Brent, Attorney at Stoll Keenon Ogden PLLC
Tara Adkins, Summer Associate at Stoll Keenon Ogden PLLC and University of Louisville Brandeis School of Law
A decision by the U.S. Court of Appeals for the Second Circuit further invigorates the debate over the scope of computer privacy, and serves as a warning to professionals about how client affairs can become entangled with their own. On June 17 the Court extended substantial privacy protection to a business accountant’s electronic financial records in United States v. Ganias. The financial records had been seized from the accountant’s computer files pursuant to a warrant as part of a federal military investigation into the business affairs of some of his clients.
The 4th Amendment to the U.S. Constitution secures an individual against unreasonable searches and seizures of personal property by the government, and is the foundation for American law regarding search warrants. It requires a government official seeking a search warrant to first establish probable cause to believe that a search would uncover evidence of a specific crime, and further, to state with particularity the areas to be searched and the items to be seized.
In Ganias, the 4th Amendment was placed in issue when Army computer specialists obtained a warrant to search the accountant Ganias’s computer records for information on two businesses under investigation and for which Ganias happened to provide accounting services. Neither Ganias himself nor his own accounting business was implicated in any way in that matter. Government investigators executed the warrant by making forensic mirror images (or identical copies) of Ganias’s computer hard drives, copying every file on the computers – including files beyond the scope of the warrant, such as Ganias’s personal financial files – to be preserved for ongoing review.
Investigators spent 13 months extracting and separating out the computer files that were relevant to the search warrant, but neglected to purge or delete the extraneous files that did not relate to the investigation of Ganias’s clients. As a result, Ganias’s personal financial records were retained by the Government for 30 additional months without probable cause until the IRS, beginning to suspect possible tax violations by Ganias based on other outside information, finally obtained another warrant to search those records for evidence of Ganias’s guilt. That search led to a grand jury indictment of Ganias for conspiracy and tax evasion, for which he was eventually convicted and sentenced to 24 months in prison despite a motion by Ganias’s attorneys to suppress the IRS search of the retained files.
On appeal, the Court considered whether the 4th Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future investigations. The Court found that although the government can lawfully seize extraneous files unrelated to a warrant through the mirror image copying method, and can retain the bulk of the information for a period necessary to extract the required information under the warrant, the Government cannot retain those extraneous records indefinitely for the purpose of searching them whenever it later develops probable cause. The Court said if the government were given this ability, “every warrant to search for particular electronic data would become, in essence, a general warrant,” much like the ones used by the British that inspired the founders to enact the 4th Amendment in the first place. Thus, the Court held that the computer files implicating Ganias should have been suppressed, and that the extended retainer violated Ganias’s 4th Amendment rights as an unreasonable search and seizure.
As noted by the Court in Ganias, the framing and enactment of the 4th Amendment was originally prompted by the indiscriminate searches and seizures conducted by the British government under the authority of “general warrants.” These warrants were not limited in scope, and permitted sweeping access to the entirety of an individual’s private property and information, regardless of any alleged link to a crime or offense. The framers of the U.S. Constitution sought to change this practice in America, believing that the right to retain privacy of one’s “papers,” or more generally, one’s property and information, should be an essential part of the new American experience. The framers believed that permitting the government to “sweep away all papers whatsoever” without justification under the law would destroy that right.
The Second Circuit is not the only court recently to comment on the constitutional dangers and historical aversion to general warrants. Barely a week after Ganias, the U.S. Supreme Court issued its landmark wireless privacy decision, Riley v. California, observing that opposition to unrestrained searches of colonial era homes by mid-18th century British officers (pursuant to general warrants) was one of the driving forces behind the Revolutionary War itself. The Riley Court decried such sweeping searches in the context of modern wireless devices, and mandated that government agents obtain particularized warrants before searching personal cell phones which, according to the Court, may hold “the privacies of life” for many Americans.