A court in New York recently handed down a ruling that allowed authorities full unrestricted access to a Gmail account with a warrant.
This ruling sets a precedent to treat email accounts as hard drives, providing law enforcement with the authority to seize all communications (including saved drafts) and contacts in order to determine what information is relevant to the crime in question. This ruling comes as a surprise to other lawmakers who point to courts making very different decisions in similar cases.
DC and Kansas courts have both rejected warrant applications for email addresses with the explanation that such warrants are too broad and do not limit the search to information pertinent to the crime.
District Judge Gabriel Gorenstein provided a written explanation for the New York court’s decision, which was made on June 11, stating that authorities in this particular case had probable cause to be believe there was evidence contained within the email account.
The warrant’s wide scope and lack of regulation is creating contention among lawmakers and privacy advocates. Unlike other ambiguous legislation that leaves room for abuse or loopholes via omission, this ruling is explicitly broad:
The warrant does not contain any search protocol and does not limit the amount of time the Government may take to review the account material disclosed by Google. The warrant also does not provide for any destruction of the material disclosed once the emails within the categories listed in the warrant are identified.
The original court case involved an investigation into money remitting and laundering. An FBI affidavit asserted that the investigation had probable cause to believe the email address in question was involved in the alleged crimes, and requested Google provide “all emails sent, received, or stored in draft form, all address book information, and a variety of other information associated with the account.”
The court ruling does not specify whether the warrant opens up the entirety of the Google account. As Google has increasingly integrated its services over the past couple years, access to a Gmail account could potentially provide access to services such as Google+, Google Drive, Google Wallet, Google Voice, and Chrome and Android browsing data.
Judge Gorenstein’s letter of explanation leaves “other information associated with the account” open to interpretation.
Other court cases have provided precautionary measures. According to Tech Times, one DC ruling directed Google to first brief its staff before directly providing law enforcement with relevant data from the user’s account, thereby restricting access to the account to those already working with Google. Judge Gorenstein countered that Google staff could not be reasonably trained on what to search for in a criminal investigation where potential criminals may use a certain “language” to allude to illegal activity:
First, the burden on Google would be enormous because duplicating the Government’s efforts might require it to examine every email…
Second, Google employees would not be able to interpret the significance of particular emails without having been trained in the substance of the investigation. Seemingly innocuous or commonplace messages could be the direct evidence of illegality the Government had hoped to uncover. While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so.
Courts across the US have seen a rise in contradictory rulings disagreeing on best practices and ambiguously differentiating between hard drives, email accounts, and cloud-based data.
Privacy advocates are calling for a more consistent approach to how prosecutors and investigators can handle digital information.
Jim Dempsey of the Center for Democracy & Technology told Tech News World, “there clearly need to be limits on the scope of digital searches, whether the government is seizing a hard drive or an account with a third party,” and “giving the government access to everything digital is no longer an acceptable approach, even with a warrant.”
Judge Gorenstein concluded with his justification for not including any time constraints on the warrant. He reasoned that sufficient procedures exist for the individual who would like to challenge a warrant or request a suppression motion. His explanation ends with the assurance that court processes provide “strong incentive” for law enforcement to comply with Fourth Amendment rights.