Financial criminals seeking to communicate on their money laundering operations may want to avoid using Gmail to do so. This week, a US judge in Manhattan ordered Google to turn over to federal prosecutors all contents of a Gmail account belonging to a person suspected of money laundering.
The move by US magistrate Judge Gabriel Gorenstein, of the Southern District of New York, departs substantially from recent high-profile decisions, and has angered privacy advocates.
The ruling, which was accompanied by a 23-page memorandum opinion on Friday, said email accounts are covered by the same search and seizure principles applied to hard drives.
US courts generally allow law enforcement to inspect contents of computers off-site with few restrictions, as long as a showing of probable cause demonstrates a “sufficient chance of finding some needles in the computer haystack.”
“We view it as well-established that a search warrant can properly permit the Government to obtain access to electronic information for purposes of a search even where the probable cause showing does not apply to the entirety of the electronic information that is disclosed to the Government,” US magistrate Judge Gabriel Gorenstein, of the Southern District of New York, wrote on July 18.
US law enforcement has until now fared poorly in obtaining access to entire email accounts controlled by third-party providers, like Gmail or Yahoo. Notably, US courts in Kansas and the District of Columbia have shot down applications for search warrants for failing to “particularly” specify, as required by the Fourth Amendment, the contents of emails sought.
The fact that the case is tied to a money laundering investigation does not directly impact the legal issues at hand. It does, however, point to the rising prevalence of email as an evidence source in money laundering cases. The ruling may grant US law enforcement greater leeway to trawl email accounts in financial crime cases, despite the unresolved conflicts with previous court decisions.
Ruling sets precedent for overly broad digital searches, say privacy groups
In his ruling, Judge Gorenstein said other courts had erred by ignoring a large body of case law that grants police considerable leeway to cursorily sift through paper documents to determine whether they indicate or point to crime.
“Judge Gorenstein notes that the Fourth Amendment’s particularity requirement gives officers some latitude to briefly look at irrelevant data to find relevant data, much like the search of a house,” said Hanni Fakhoury, an attorney for the Electronic Frontier Foundation, in San Francisco.
“But in the digital world, unlike in the physical world, often that brief look can entail retention of all the data, relevant and irrelevant, for an extended period of time.”
Fakhoury also highlighted, echoing other data privacy champions, the US Supreme Court’s decision last month barring police from searching cell phones of people they arrest without a warrant. In that ruling, the first to address computer search, Chief Justice John Roberts described “general warrants” as a driving force behind the American Revolution, and warned against unrestrained searches for evidence of criminal activity.
“The Supreme Court’s decision reinforces the notion that digital data can’t be equated with physical items like papers because it contains so much more information, in terms of both volume and quality,” Fakhoury added. “When police enter a home to search for, say a shotgun, they can’t look at places where the weapon is unlikely to be found.”
“But these broad digital searches allow the government to search through everything because the government believes the evidence could be anywhere. So that’s problematic in my mind,” he concluded.
Representatives for Google did not respond to a request for comment.
‘All content and other information’
Search and seizure of electronic evidence is governed by the Fourth Amendment, which protects against unreasonable intrusions of privacy, and the US Stored Communications Act of 1986. That law authorizes the government to obtain contents of electronic communications that are held in electronic storage, or by a provider of “remote computing service.”
The government applied for a search warrant on June 11, submitting an affidavit from an FBI officer that shows probable cause the suspect – unnamed in court papers – used the account to conduct criminal money laundering activity. Judge Gorenstein granted the application on the day it was presented.
The warrant directs Google to provide “all content and other information within [its] possession, custody, or control associated with” the email account — including all emails sent, received, or stored in draft form, all contacts, and other information.
It does not limit the amount of time the government can spend reviewing the information Google discloses, nor does it specify a search protocol – which Judge Gorenstein said the law does not require. Instead, prosecutors may review the contents of all email to identify specific categories of evidence.
Law enforcement data requests skyrocket
Debate over the constitutional parameters by which law enforcement can pursue personal information shows no signs of waning. It is spurred not just by the ubiquity of technology, but by the growing expertise of lawyers and law enforcement officials in how to exploit electronic information for investigations and prosecutions.
Requests by law enforcement for access to personal information hosted by service providers continue to surge, with the United States Government leading the way. Google’s 2014 Transparency Report shows a 220 increase in requests since 2009, when it first began tracking those figures.
Last year, Google fielded 27,477 requests specifying 42,648 user accounts – and turned over some or all of the requested information in 64% of those instances. The US alone accounted for almost 40 percent of all requests globally.
(The New York case is titled, In The Matter Of A Warrant For All Content And Other Information Associated With The Email Account email@example.com Maintained At Premises Controlled By Google, Inc.)