Last Friday, Magistrate Judge Paul Grewal issued an order in In re: [REDACTED], a case where the government had applied for a search warrant to look through the titular email address in a case involving “the theft of government funds”. The specifics in the instant case aren’t too important, though, as Judge Grewal more broadly discusses the government’s process for searching computers housed by “third-party cloud provider[s] like Google”.

Following a standard format used by the Department of Justice, the government draws no distinction and commonly seeks approval for the same seize first, search second methodology whether the data of interest is local or remote.

The opinion goes on to describe the supporting affidavit in this particular case:

[T]he property to be searched is identified as a particular email account stored on the premises of Google’s headquarters. No date restriction is included… No defendant or defense counsel is present. Indeed, no defendant yet exists, as no case has yet been filed. There are no hearings, no witnesses, no briefs and no debate. Instead, a magistrate judge is left to predict what would or would not be reasonable in executing the warrant without any hard, ripe facts. This is hardly a recipe for success.

The government usually relies on Rule 41(d)(1) of the Federal Rules of Criminal Procedure:

After receiving an affidavit or other information, a magistrate judge… must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device. (Emphasis added)

Even so, the order notes that in the Ninth Circuit, there are “ex ante restrictions in search warrants”, and Judge Grewal ultimately finds the government’s application for the search warrant to be too broad:

The court is nevertheless unpersuaded that the particular seize first, search second proposed here is reasonable in the Fourth Amendment sense of the word. On past occasions, the government at least submitted a date restriction. Here, there is no date restriction of any kind… Nor has the government made any kind of commitment to return or destroy evidence that is not relevant to its investigation. This unrestricted right to retain and use every bit Google coughs up undermines the entire effort the application otherwise makes to limit the obvious impact under the plain view doctrine of providing such unfettered government access.

In closing, Judge Grewal observes that he is not the first Magistrate to deny this kind of search warrant application – Judge Facciola in the District of Columbia issued a similar order back in March. Might this be the start of a new trend?