Fourth Amendment Violations in the Digital World Under Rule 41(e)(2)
The Fourth Amendment was the Founder’s response to “the reviled ‘general warrants’” that “allowed British Officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California. As Laura Donohue writes in The Original Fourth Amendment, the Founders, just like their English predecessors, were principally concerned with “the right to be secure in one’s home” in order to provide “a private sphere within which thoughts, beliefs, writings, and intimate relations were protected from outside inspection.” The Founders achieved this end with the passage of the Fourth Amendment which “cemented the home as a protected sphere into the U.S. Constitution.” Id.
In the modern world, the right to protect our private sphere from government encroachment remains as important as ever. Today, cell phones and computers store detailed records of our “thoughts, beliefs, writings, and intimate relations.” Id. As the Supreme Court explained in Riley v. California, “[w]ith all they contain and all they may reveal, [phones] hold for many Americans the privacies of life.” For many of us, this includes the most sensitive and intimate information about our lives: messages to our romantic partners, records from our doctors, voice mails from our pastors, private financial records, records of everywhere we have travelled, and every website we have searched.
To keep the promise of the Fourth Amendment alive in the modern world, the digital records kept on our phones and computers, and backed up to cloud storage, should be protected at least as zealously as a diary kept locked in our home. Unfortunately, the current Federal Rules of Criminal Procedure make it far too easy for the government to ignore the rights enshrined in the Fourth Amendment. In particular, lax oversight of the use of Rule 41(e)(2)(B), which addresses warrants seeking electronically stored information, has allowed the government to in effect obtain general warrants that allow it to rummage through our digital lives with few if any restrictions.
We have seen firsthand how Rule 41(e)(2)(B) is used and misused in our practice. One of our clients was under investigation for a single instance of fraud, for example, and his entire iCloud account was seized, searched, retained, and turned over to his codefendants. The government’s extraction report for our client’s iCloud account was over 90,000 pages, and nearly all of the records taken had no connection to his case. Instead, the government swept up years of private communications and data disclosing the most intimate details of our client’s life, as well as the lives of his friends and family. We have seen our clients most private communications—with their pastor, their parents, their doctor, their therapist—seized and retained by the government for years.
Our clients’ cases are unfortunately not unique. The amount of data swept up and stored indefinitely by the government based on search warrants obtained using Rule 41(e)(2)(B) is astonishing. The Founders would first blush and then rage if they saw how our digital records are treated today.
I. What is Rule 41(e)(2)(B) and How Is It Used In Practice?
Rule 41(e)(2)(B) addresses search warrants for electronically stored information (ESI), like iCloud account data and the contents of a cell phone. The rule allows warrants to authorize the government to obtain a copy of electronically stored information so that it can conduct “a later review of the media or information consistent with the warrant.”
Rule 41(e)(2) permits the use of a two-step process when searching electronically stored information. See 2009 Advisory Committee Note to Federal Rule of Criminal Procedure Rule 41(e)(2)(B). In the first step, “officers may seize or copy the entire storage medium.” Courts have allowed for the seizure or copy entire storage media to include seizure of all ESI stored on an iCloud account like in United States v. Johnson, 93 F.4th 605, 613 (2d Cir. 2024), or email account like in United States v. Klyushin, 643 F. Supp. 3d 261, 271 (D. Mass. 2022).
In the second step, law enforcement is supposed to review the electronic records to identify and seize only those records that fall “within the scope of the warrant.” Courts in cases like United States v. Zelaya-Veliz, 94 F.4th 321, 338 (4th Cir. 2024) have held this two-step process is not inherently unconstitutional. But in practice, the use of this rule can lead to shocking results that run afoul of the Fourth Amendment’s prohibition on general warrants. Indeed, in numerous cases that we’ve been involved in, the government ignores step two entirely.
Courts have found in cases like Zelaya-Veliz that step two requires that, while conducting a later review of the electronic records obtained in step one, law enforcement must separate out electronic records responsive to a warrant from nonresponsive records. Even though courts require the separation of responsive from non-responsive electronic records, we’ve repeatedly seen the government retain and rummage through both responsive and non-responsive digital records. In other words, the government performs step one, obtaining a copy of essentially all data in an account or phone, and then skips step two.
II. Retention of Non-Responsive Electronic Records
In some of our cases, the contents of our clients’ digital devices or cloud storage accounts were seized years ago. We see no evidence that the government has taken steps to ensure that it retains only documents that are subject to seizure under the terms of the relevant warrants. Instead, the government seems flummoxed by the suggestion that they are not permitted to keep the entire contents of a phone or a cloud account indefinitely.
Under Rule 41(e)(2)(A)(i) officers must execute a warrant for ESI within a specified time no longer than 14 days,” but the 14-day limit only applies to the “actual execution of the warrant and the on-site activity” and does not include “any subsequent off-site copying or review of the media or ESI.” In other words, while officers must initially seize or copy ESI within 14 days or fewer, they may then copy or review that ESI for an unspecified amount of time. A judge may impose a deadline for “the return of the storage media” or for the termination of the officer’s access to the ESI when she issues the warrant, but that is not something we have seen done in our cases.
Courts have at least occasionally found the government violates the Fourth Amendment when it hordes data beyond what it identified in its warrant. In United States v. Cawthorn, 682 F. Supp. 3d 449 (D. Md. 2023), for example, the government obtained a copy of essentially everything in our clients’ Instagram account—including thousands of private direct messages with his friends and family. But instead of retaining only responsive records, the government kept everything it received from Instagram for over two years, and periodically searched through it as they saw fit. The court held that conduct was unreasonable and violated our client’s Fourth Amendment rights, and it suppressed evidence obtained from the later searches. But too often, courts avoid tackling the issue by relying on the good faith exception. For example, in United States v. Ganias, 824 F.3d 199, 227 (2d Cir. 2016) the Second Circuit declined to rule whether the retention of nonresponsive data was a violation of the Fourth Amendment, finding any violation would in any event be insulated by the good faith exception, which allows the use of evidence obtained by officers relying in good faith on a defective warrant. However, in his dissenting opinion in Ganias, Judge Denny Chin argued that the government violated Ganias's Fourth Amendment rights by unreasonably continuing “to hold on to his non-responsive files long after the responsive files had been extracted to reexamine when it subsequently saw need to do so.”
We agree with Judge Chin. In many of our cases, the government has retained our clients’ non-responsive data for years, without making any effort to segregate responsive and non-responsive records. The good faith exception should not save the government when it indefinitely retains terabytes of highly personal digital records in violation of the terms of its own warrant, and our clients’ Fourth Amendment rights.
We’ve described how Rule 41(e)(2)(B) can be misused to in effect grant the government a general warrant that allows it to rummage through a person’s digital life at will. Next, we will delve deeper into the application of the Fourth Amendment in the digital world and discuss the additional problems created by an anachronistic approach to the third-party doctrine.
