Update
The U.S. Court of Appeals for the Second Circuit issued an order on May 27, 2016 affirming the judgment of the district court en banc in U.S. v. Ganias on the grounds that the Government relied in good faith on the 2006 warrant.
The Case
In U.S. v. Ganias, the police obtained a warrant to search Mr. Ganias’s computers for evidence of theft and business fraud. The police made copies of all the data stored on his computers in order to conduct an offsite investigation into files relevant to the investigation and covered by the warrant. These mirror copies of Mr. Ganias’s computers also included his personal financial records and other personal and sensitive files that were irrelevant to the investigation.
The police extracted and reviewed the computer files that were relevant to the alleged theft and business fraud, and segregated this information from the rest of Mr. Ganias’s data. However, the police kept a copy of the irrelevant data, even though they were not permitted to review it under the original warrant.
A year later, the police began to also investigate Mr. Ganias on charges of tax evasion. They obtained a second warrant to search their copy of Mr. Ganias’s personal financial records, which they had kept from the previous investigation. Mr. Ganias filed a motion to suppress the use of these records in his trial for tax evasion, on the grounds that the police’s retention and subsequent review of such records were unconstitutional under the Fourth Amendment.
The Second Circuit Court of Appeals agreed with Mr. Ganias. The court found that law enforcement’s seizure and retention of a mirror image of Mr. Ganias’s hard drives for two and a half years after the original investigation was unreasonably under the Fourth Amendment, given that the seizure and retention included personal records that were beyond the scope of the original warrant. The Second Circuit granted en banc review of the court’s decision.
The Brennan Center, along with the ACLU, EFF and OTI, filed an amicus brief in support of Mr. Ganias, urging the court to affirm its original decision. The brief argues that when the government seizes entire hard-drives of data to facilitate particular searches, the Fourth Amendment forbids the government from retaining any non-responsive data for longer than reasonably necessary to effectuate its search. In this case, after copying several entire hard drives of data, the government retained the data collected for an unreasonably long period of time, even after it had separated the data responsive to the original warrant from the non-responsive data. A contrary rule would allow the government to amass a gigantic repository of every digital file it comes across that shares hard drive space with files to which it is actually entitled, and then years later revisit people’s most private personal records in aid of some new suspicion or case.