Say the government gets a search warrant to seize your hard drive in connection with an investigation and, rather than pull the relevant files, it just makes a copy of it all and keeps it indefinitely. Sounds like a serious violation of privacy, no? In United States v. Ganias, the U.S. government argues that it has the power to do just that.
In 2003, an accountant named Stavros Ganias had his digital data seized as part of an investigation into Mr. Ganias’ clients. The government never returned or destroyed Mr. Ganias’ data after searching it for information responsive to this search warrant.
Then, years later, the government procured a second search warrant directly related to Mr. Ganias in a subsequent criminal investigation and executed the warrant on the same data originally collected from Mr. Ganias related to the investigation into his clients. Mr. Ganias was subsequently convicted of tax evasion based substantially on evidence collected under the second search warrant.
In 2014, a panel of the Second Circuit Court of Appeals held that the government had unreasonably retained Mr. Ganias’ digital data for two-and-a-half years in violation of the Fourth Amendment. The court suppressed the evidence collected under the search warrant and vacated his conviction. Almost a year later, the Second Circuit agreed to hear the case en banc – meaning that the entire panel of active Second Circuit judges will hear the appeal and decide it anew.
Last week, CCR, represented by Kramer Levin Naftalis & Frankel LLP, submitted a friend of the court, or amicus, brief to the Second Circuit panel, arguing that the court should only allow the government to keep digital data that is responsive to the original warrant and use it for the purposes set out in the writ; anything else should be returned and deleted after a reasonable period. CCR has long played a critical role in litigation involving surveillance of electronic communications, particularly in the context of political activists and dissidents.
In its brief, CCR noted that unlike traditional physical searches, computers contain vast amounts of digital information that may be collected in an electronic search, including correspondence files, photo albums, and other personal data. While the government may have limited powers, when necessary, to search computer data in a more intrusive manner than physical files, this ability should not constitute a license for an impermissible “general warrant” (where the government could enter a premise and search and seize without any focus or guidance) of the kind deplored by the Founding Fathers.
Amicus briefs were also submitted in support of Mr. Ganias by Google, the ACLU, the Brennan Center for Justice, and the Federal Public Defenders within the Second Circuit, among others.
It is critical that the court take a strong stance against the government’s claimed authority in this case, particularly in light of what we now know about the NSA’s mass surveillance practices. As the Center emphasized in the brief, we need a strict reading of the Fourth Amendment’s particularity requirement in this case if we are to be protected against impermissibly broad government searches and seizures.
Noah Hertz-Bunzl is a litigation associate at Kramer Levin and was previously a law clerk on the United States District Court for the Southern District of Florida.