The Huma Abedin Emails: Election Is Over but the Issues Persist Maranda Fritz and Brian Waller, New York Law particularized warrant, seize entire computers Journal, (November 9, 2016) -- In a Law Journal and hard drives, and then look through the article last week, "The Huma Abedin Emails: contents and decide if there is any other material Herein Lies the Danger of Overseizure," (Nov. that is relevant to its investigation—or to an 1, 2016), we discussed the government's entirely different alleged offense. The practice of "overseizure" that resulted in the FBI government could then go back to the court, now accessing Huma Abedin's emails even though armed with the fact that it has happened on files its warrant authorized a search for and seizure that were supposedly "in plain view," and obtain of the communications of Anthony Weiner. Since authorization to seize that information as well. then, the legal machinations continued to their Through that process, the government would stunning conclusion when, on Sunday, FBI have seized and examined the entire Director James Comey announced that the FBI computer—without a warrant. Surely that had not located any new or significant evidence seeming end run around the warrant and that he was adhering to his earlier requirement should not be permissible. recommendation. Then, on Tuesday, the But, one might argue, that kind of unbridled Republican candidate prevailed in the election. review of the contents of a computer is the The FBI investigation of Hillary Clinton's modern and electronic equivalent of any old- handling of emails may be closed—again—and fashioned search: The government is allowed to the next president chosen, but in the process, "search" through one's belongings to locate that troubling aspects of the criminal justice system which is within the scope of the warrant. That became the subject of intense scrutiny and assumption, though, fails on two grounds. First, continuous commentary. Even as the media when it comes to the contents of a computer, a moves on to post-election coverage, the issues general and unrestricted search constitutes a far arising from the government's overseizure greater interference with privacy rights than practices, and the actions of the FBI, remain would a traditional search. crucial concerns for the legal community. As noted by the court in United States v. Is Overseizure Necessary? Abdellatif, 2010 WL 5252852 at *5 (W.D.N.Y. 2010), "computers are capable of storing First, the problematic practice of government immense amounts of information and often "overseizure" was on display for the entire contain a great deal of private information"; country to see, yet there was little hue and cry searches, therefore, "often involve a degree of about the fact that the FBI had taken and was intrusiveness much greater in quantity, if not accessing the personal communications of a different in kind, from searches of other veritable bystander. That process of allowing the containers." Unlike a traditional search, the government to "overseize" the entire contents of overseizure process allows the government a computer—where the government then uses prolonged access to a "computer hard drive [that that process as an opportunity to "search" the is] akin to a residence in terms of the scope and entire contents—arguably threatens to slowly but quantity of private information it may contain." surely weaken and impair fundamental United States v. Galpin, 720 F.3d 436, 446 (2d constitutional principles and privacy interests. Cir. 2013). If that practice becomes the norm, the The Supreme Court in Riley v. California, 134 government could, in any case, obtain a properly S.Ct. 2473, 2490 (2014), recognized the ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. ATTORNEY ADVERTISING The Huma Abedin Emails: Election Is Over but the Issues Persist daunting challenges that are presented by proceed on the assumption that, when it electronic searches precisely because they have comes to seizure of electronic records, this the capacity to store vast amounts of material will be far more common than in the days of that include the most personal, private, and paper records. This calls for greater confidential subjects having nothing to do with a vigilance on the part of judicial officers in given warrant. striking the right balance between the government's interest in law enforcement Technological innovation allows computers to and the right of individuals to be free from function as "cameras, video players, rolodexes, unreasonable searches and seizures. The calendars, tape recorders, libraries, diaries, process of segregating electronic data that albums, televisions, maps, or newspapers," and is seizable from that which is not must not they can store "millions of pages of text, become a vehicle for the government to thousands of pictures, or hundreds of videos." gain access to data which it has no Id. at 2489. These devices become "a digital probable cause to collect. record of nearly every aspect of [users'] lives— from the mundane to the intimate." United States v. Comprehensive Drug Testing, Citing Ontario v. Quon, 560 U. S. 746, 760 621 F.3d 1162, 1177 (9th Cir. 2010) (emphasis (2010). added). Second, a generalized search of electronic data is, as a practical matter, unnecessary. With the The Ninth Circuit ultimately declined to impose a advent of electronic storage came electronic requirement that protocols be included in a means to search and locate data. There are any warrant application. The U.S. Court of Appeals number of "sophisticated search tools" that for the Second Circuit has likewise declined to "allow the government to find specific data require search protocols but has emphasized without having to examine every file on a hard the "potential for privacy violations occasioned drive or flash drive." In re Search of Apple iPhone, 31 F.Supp.3d 159, 166-167 (D.D.C. by an unbridled, exploratory search of a hard 2014). drive" and indicated that the plain view exception Search Protocols might not apply to searches of electronic materials. United States v. Galpin, 720 F.3d at Given those circumstances, the requirement of 451. Other courts have stated that, given the a narrowly tailored forensic search is a critical response to "overseizure," but that kind of absence of protocols or other judicial guidance, targeted search process will be the norm only if they will scrutinize the treatment of "overseized" counsel and the courts scrutinize the process by data to ensure that the government has which a forensic review is conducted. Early in performed searches specifically designed to the jurisprudence concerning electronic ensure compliance with a particularized warrant. seizures, the U.S. Court of Appeals for the Ninth See United States v. Graziano, 558 F.Supp.2d Circuit suggested that, where an overseizure is necessary, the warrant should also set forth the 304, 315 (E.D.N.Y. 2008); Borden v. United protocols that would be employed to ensure that States, 2010 U.S. Dist. LEXIS 71406 (M.D. Fla. the government used the least invasive means 2010). As observed in Graziano, by which to locate that which was within the scope of the warrant. …the rejection of the blanket rule [requiring search protocols] does not give law We recognize that overseizing is an inherent enforcement a license to turn every search part of the electronic search process and of a computer into a general search; rather, 2 The Huma Abedin Emails: Election Is Over but the Issues Persist there are Fourth Amendment limits to every further review. Her emails were clearly not search that apply with equal force to within the scope of the warrant nor are they searches of computers. Thus, although criminal contraband. According to published courts are ill-suited to micromanage in reports, however, the FBI did not step away advance how the computer will be searched, law enforcement must establish from the nonresponsive material. Instead, it the basis for searching the computer and went the additional step of analyzing metadata particularize the evidence being sought associated with those emails and then used that during such search. analysis in an application to obtain a further warrant. The metadata were not, however, "in Graziano, 558 F.Supp.2d at 316. plain view," and that additional scrutiny of Handling of Weiner Computer Abedin's communications appears not to be We now know that the seizure and search of permissible. Anthony Weiner's computer constituted a Given these clear issues associated with the textbook example of an overseizure. By last Sunday, the press reported that the FBI had FBI's handling of Weiner's computer, and the gone back to the judge with an application for incessant discussion of the issue over the last authorization to seize the emails of Huma week, it is surprising that there was not more Abedin based on the presence of those emails attention paid to a fundamental question: Do we on the computer and an analysis of the accept the premise that the FBI can seize a associated metadata. But those steps that were taken to obtain that further warrant arguably computer pursuant to a particularized warrant illustrate the precise circumstances that make but then rifle through it and thereby discover, unrestrained overseizure so dangerous. purportedly "in plain view," other evidence, or First, there appears to have been no need or did we just witness an almost nonchalant justification for the government to have been reaction to an apparently impermissible use of browsing through the computer. Responsive overseizure? material could and should have been located The Comey Communications using simple forensic searches that would While there was little reaction in the public discourse identify and extract his communications. Even if to the electronic seizure issue, there was obviously the warrant also called for seizure of, for an outcry regarding the actions of FBI Director example, explicit materials, that too could have Comey.