Civil liberties groups: Freedom at stake in 2nd Circuit seized hard drive case

August 3, 2015

(Reuters) – Here’s a rather terrifying vision of the future, inspired by the dire warnings contained in amicus briefs in a case called U.S. v. Ganias at the 2nd U.S. Circuit Court of Appeals. In the course of investigating someone you are connected to, perhaps a client or business associate, the government obtains a search warrant for the records of your involvement with its target. Rather than comb through your computer hard drive to find relevant documents, government investigators copy your entire drive: your business records, personal information, emails, whatever you’ve got on the computer. The feds pull out what they need for the case against their target. But instead of disposing of the rest of your electronic records, the government warehouses its copy of your hard drive. And if you happen to fall under scrutiny – or if the investigation of your colleague was just a pretext for getting a hold of your electronic files – your computer hard drive is sitting right there in government hands, waiting to be plumbed for evidence against you.

Scary, right? That’s why 12 public interest groups dedicated to preserving civil liberties – as well as Google, which is worried about the privacy of its users – have filed amicus briefs in the Ganias case, which, as I’ve reported, raises the question of when, if ever, the government has the right to retain and search computer records seized in one investigation later found to be relevant in another. In 2014, a three-judge 2nd Circuit panel concluded the government violated the Fourth Amendment rights of financial advisor Stavros Ganias, who was convicted of tax evasion based partly on evidence the government obtained from a copy of his computer hard drive, which had been seized in a separate investigation of one of his clients.

The Justice Department asked the panel to rehear just its holding that the government acted in bad faith so the improperly obtained evidence must be suppressed. Instead, the entire 2nd Circuit voted to take the Ganias case en banc – a rare occurrence in this circuit – to review the Fourth Amendment and evidence suppression issues.

The Fourth Amendment right against unreasonable search and seizure looms large in briefs by Ganias’ amici, which include the National Association of Criminal Defense Lawyers (NACDL), the New York Council of Defense Lawyers and the Federal Public Defenders. A group called Restore the Fourth provides a concise history on why the drafters of the U.S. Constitution were so determined to prohibit “general warrants,” and explains why, in its view, permitting the government to hold digital files indefinitely would violate the Fourth Amendment’s particularity requirement.

As several of the briefs – including those by the Electronic Privacy Information Center (EPIC) and by the American Civil Liberties Union, Electronic Frontier Foundation and other groups – acknowledged, “overseizure” of electronic files has become “the rule rather than the exception,” in the words of the NACDL brief. There are practical reasons why: Government investigators argue that it is more convenient for everyone if they create and retain copies of computer hard drives rather than taking possession of witnesses’ computers or spending weeks sifting though files in witnesses’ homes and offices.

But according to EPIC, the 2nd Circuit should follow the lead of the 9th Circuit in the 2010 case U.S. v. Comprehensive Drug, restricting the use of electronic files that exceed the scope of search warrants. “Sensitive personal information should not be subject to government inspection and indefinite retention merely because it happens to exist on the same storage device as a record subject to a search warrant,” the brief said. “This exceeds the permissible scope of the government’s authority to search and is an artifact of the courts’ failure to make clear the boundaries of a lawful search.”

The U.S. Supreme Court has of late taken a similarly narrow view of law enforcement’s right to use electronic evidence obtained without a warrant, the amicus briefs said. They mentioned, for example, last term’s opinion in Riley v. California, in which the court held unanimously that police must get a search warrant before searching cellphones of people they’ve arrested.

Ultimately, argued the Center for Constitutional Rights, the Ganias case is about no less than assuring personal freedom. “As the government’s investigative tools expand with the rise of computer data, it is critically important to limit this discretion meaningfully, for such overbroad seizures of personal data also expand the significant risk that the government will investigate not crimes, but people,” it said. “As Justice Robert Jackson warned: “Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.'”


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