A New York judge defended a controversial order that gave the government access to all content of the Gmail account of a target in a money laundering investigation, holding that courts have long recognized the practical need for law enforcement to seize documents if only to determine whether they fall within the warrant.
The opinion, which will likely fuel the privacy debate in the country, is at odds with decisions by judges in several courts including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted in an opinion Friday.
The District of Columbia judge had refused disclosure of the contents of an entire email account because that would allow the government to actually seize large quantities of emails "for which it has not established probable cause."
The court in Kansas criticized a similar warrant as it failed to "limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated."
The New York court, in contrast, granted on June 11 a warrant that permitted law enforcement to obtain emails and other information from a Gmail account, including the address book and draft mails, and to permit a search of the emails for certain specific categories of evidence.
Courts have recognized that on-site searches of hard-disk drives of computers and other storage devices are not practical given the complexities of electronic searches, and have as a result allowed for the seizure or copying of such storage, Judge Gorenstein wrote. He held that the same applied to email accounts.
"We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts," the judge wrote. "Indeed, in many cases, the data in an email account will be less expansive than the information that is typically contained on a hard drive."
Responding to the opinion by the District of Columbia court that gave the government the option of getting the email host to search the emails, Judge Gorenstein wrote that Google employees would not be able to arrive at the significance of particular emails without having been trained in the substance of the investigation.
"While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so," he wrote.
The court did not also place any limits on the manner or time frame in which the emails should be searched or retained.
"For example, in a drug investigation, it might be obvious based on information from an informant or other source that emails referring to the purchase or importation of 'dolls' refers to cocaine, but investigators might only learn as the investigation unfolds that a seemingly innocuous email referring to purchase of 'potatoes' also refers to a cocaine shipment," the judge wrote.
Google could not be immediately reached for comment on the opinion.