Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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<img class="alignright wp-image-3912 size-medium" src="http://dataprivacymonitor.bakerhostetlerblogs.com/wp-content/uploads/sites/5/2015/05/Data_163916964-300x300.jpg" alt="Data_163916964" width="300" height="300">On July 29, 2015, BakerHostetler <a href="http://dataprivacymonitor.bakerhostetlerblogs.com/wp-content/uploads/sites/5/2015/08/AmicusBriefforUSvGaniasFiled-7-29-2015.pdf">filed an amicus brief</a> with the Second Circuit on behalf of the Center for Democracy and Technology, joined by five prominent nonprofit public interest groups, for the en banc rehearing of United States v. Ganias, Case No. 12-240. In Ganias, the Court will grapple with arguments centering on whether the government, after seizing a large volume of digital data pursuant to a warrant, may retain that data indefinitely and later use it in ways outside the scope of the original warrant, including bringing charges against individuals not originally under investigation. Recognizing the huge impact the Second Circuit’s en banc decision will have for anyone subject to a warrant, the amicus brief urges the Court to ensure that Fourth Amendment protections remain strong in the face of ever-evolving technologies.

In this case, the Army was investigating two companies that the Army had hired to provide maintenance and security at a vacant Army facility. In the course of its investigation, the Army obtained a warrant in 2003 to search the offices of Stavros Ganias, the accountant for the actual targets of the Army’s investigation. When executing the warrant, the Army made forensic mirror images of the hard drives of all three of Ganias’s computers, collecting all data on those computers, including data beyond the scope of the warrant.

By December 2004, although the Army and the IRS (which the Army had invited to join the investigation) had identified all computer files that were covered by the 2003 warrant, they continued to retain the nonresponsive data. About a year and a half later, the government obtained a new warrant to officially search the additional data that had been deemed nonresponsive to the 2003 warrant, subsequently bringing charges for conspiracy and tax evasion against Ganias based on evidence found in his personal files from the hard drives related to his personal taxes.

During his trial, Ganias sought and failed to obtain suppression of these personal computer files, which were key pieces of evidence leading to his sentence of 24 months in prison. On appeal to the Second Circuit, Ganias argued that his Fourth Amendment rights were violated by the government’s seizure and retention of his personal computer records for over two and a half years, in addition to seeking a new trial for juror misconduct. Though the Second Circuit was not persuaded by the juror misconduct argument, the Court vacated Ganias’s conviction on Fourth Amendment grounds. Subsequently, the Second Circuit <a href="http://dataprivacymonitor.bakerhostetlerblogs.com/wp-content/uploads/sites/5/2015/08/USvGaniasOrderforEnBancRehearing.pdf">granted a petition for an en banc rehearing</a> in order to consider, in part,
“[w]hether the Fourth Amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non‐responsive files, retained the cloned hard drives for some two‐and-a‐half years, and then searched the non‐responsive files pursuant to a subsequently issued warrant.”
Due to the importance of ensuring Fourth Amendment protections in the digital arena, the Center for Democracy and Technology joined with five other organizations to file this amicus brief. The other organizations to join the brief were the ACLU, the ACLU of Connecticut, the Brennan Center for Justice, the Electronic Frontier Foundation, and New America’s Open Technology Institute. The amicus brief calls for the Second Circuit to recognize that the act of copying digital data constitutes a search and seizure under the Fourth Amendment, and thereby to ensure that appropriate protections apply. Further, the amicus brief asks the Second Circuit to affirm that the retention of Ganias’s data that went beyond the scope of the original warrant was unconstitutional, as the government’s actions violated the particularity requirement and were otherwise unreasonable under the Fourth Amendment.

Given the government’s stated position that once it had copied Ganias’s data, that data became the property of the government, the Second Circuit’s decision in this case will have considerable implications regarding whether it is permissible for the government to stockpile individuals’ personal information, robbing those individuals of their exclusive possessory interests in that information. Absent a determination that the government’s copying of digital data constitutes a Fourth Amendment search and seizure, individuals and organizations from whom the government has had reason to collect information may be forced to live in an indefinite state of suspicion, with the government wielding the ability to search through that information.

Further briefing in this matter will occur throughout the summer, with oral argument scheduled for September 30, 2015.

Does the Government Have Carte Blanche to Retain Seized Data Indefinitely? In Amicus Brief to the Second Circuit, Policy Groups Argue No