UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

In the Matter of the Search of:

Case No. 3:14-mj-00387 KFM
ORDER DENYING SEARCH
WARRANT APPLICATION

Google Email Accounts identified
in Attachment A

[Docket No.1-1 (Sealed)]

I.

INTRODUCTION

Before the Court is the government’s ex parte search warrant application seeking
compelled disclosure of all email content associated with six third-party Gmail accounts hosted
by Google, Inc. (Google) pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18
U.S.C. §§ 2703(a), 2703(b)(1)(A), and 2703(c)(1)(A). 1 The application is tendered in
connection with an ongoing investigation into suspected sexual exploitation of children. 2 The
application represents the government’s second attempt to seize the content of emails from these
six third-party email accounts. 3 This Court granted the government’s first application
authorizing the seizure of email content from these accounts based on the government’s probable
cause showing for the limited time periods set forth in the application. 4 Google declined to
comply with the search warrant.

1

Aff. ¶ 2.
Id.; see also 18 U.S.C. §§ 2251, 2252(a)(2), 2252A(a)(2), 2252(a)(4)(B), and 2252A(a)(5)(B) which
outlaw the production, distribution, receipt and possession of visual depictions of minors engaging in
sexually explicit conduct and child pornography; and 18 U.S.C. § 2422(b) which outlaws coercion or
enticement of a minor to engage in prostitution.
3
Aff. ¶ 3.
4
Id.
2

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 The government’s current search application followed Google’s untested claim
that it is incapable of producing the requested email content for the limited time periods set forth
in the first warrant. 5 Instead of challenging this assertion, the government now presents the
current application which seeks the entire content of the six third-party Gmail accounts without
the time period limitation contained in the first warrant. The new application does not explain
why such broad search and seizure authority is reasonable under the circumstances of the case.
And while the government promises to limit its search to the relevant date ranges, nothing in the
proposed warrant precludes its agents from perusing other email content regardless how remote
or how unrelated that content may be to the current investigation. Under these circumstances,
Search Warrant Application 3:14-mj-00387-KFM must be denied as overbroad. This order will
explain why this result is compelled by the Fourth Amendment. Because the order addresses
matters related to an ongoing investigation, it has been drafted in a manner designed not to
compromise that investigation.
Of course, the government remains free to seek an order compelling Google to
comply with the earlier warrant provided it limits the request to email content for the narrowly
defined periods relevant to the investigation of the six third-party Gmail accounts. 6
Alternatively, the government can renew the instant application if it proffers to seal, without any
review absent further court order, material supplied by Google that is outside the time period for
which probable cause has been established.

5
6

Id.
In the Matter of the Search of Google Email Accounts Identified in Attachment A, 3:14-mj-00352-KFM.
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 II.

BACKGROUND

Craigslist, a free online advertising website, has been used in the past to solicit
sexual encounters with minors by targeting adults who have access to minors. 7 A concerned
citizen contacted law enforcement to report one such advertisement. 8 The posting included a
photograph of a minor that, while sexually suggestive to some, would not qualify as child
pornography. 9 Law enforcement promptly identified and interviewed the individual responsible
for the advertisement. 10 This individual acknowledged the posting, admitted that images of child
pornography would be found on the computer used create the post, and confirmed an interest in
sexual contact with children. 11 The individual admitted using [REDACTED
poster]@yahoo.com to post the advertisement and to correspond with those who replied to the
advertisement. 12 Law enforcement thereafter obtained a search warrant to seize the computer
used both to post the advertisement and to correspond with those who responded to the
advertisement. 13 That computer remains in the custody of investigators. 14
Next, a grand jury subpoena dispatched to Craigslist produced a number of
similar postings by the same individual over a six month period. 15 As before, the postings
appeared to solicit sexual contact with children through adults with access to children. 16 The

7

Aff. ¶¶ 13, 14.
Aff. ¶ 12.
9
Aff. ¶ 16; see 18 U.S.C. § 2256(8) (defining child pornography).
10
Aff. ¶¶ 15, 17, and 20.
11
Aff. ¶ 20.
12
Aff. ¶ 20(g). Because this matter relates to an ongoing investigation the actual email address used by
the poster has been redacted.
13
Aff. ¶ 21.
14 Id.
The affidavit supporting the current application, as well as the affidavit supporting the first
application, fails to indicate whether this computer has been forensically examined to reveal the content of
the email correspondence between [REDACTED poster]@yahoo.com and any of the six Gmail accounts.
15
Aff. ¶ 23. In total, the individual appears to have posted six problematic advertisements purporting to
seek unlawful sexual contact with minors.
16
Aff. ¶¶ 23(a), (b), (c), (e) and (f).
8

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 subpoena also revealed the email addresses of those who corresponded with [REDACTED
poster]@yahoo.com after the problematic advertisements were posted. However, the subpoena
did not produce the content of these email communications or any photographs that may have
accompanied them. This application, as did the earlier application, demonstrated that six thirdparty Gmail accounts hosted by Google corresponded or attempted to correspond with
[REDACTED poster]@yahoo.com after two of the postings. Again, law enforcement knew
precisely when the advertisements were posted, precisely when the emails were exchanged, and
the email addresses that were used. The following two charts outline the origin, timing, and
number of emails relating to the two postings at issue in this warrant application.
First Posting
Gmail account

Outgoing emails

Incoming emails

[REDACTED
1]@Gmail.com

14 emails to
[REDACTED
poster]@Yahoo.com
1 email to
[REDACTED
poster]@Yahoo.com

11 emails from
[REDACTED
poster]@Yahoo.com
No response from
[REDACTED
poster]@Yahoo.com

[REDACTED
2]@Gmail.com

Correspondence
dates
All on the day
immediately
following the posting.
21 days after the
posting

Second Posting
Gmail account
[REDACTED
3]@Gmail.com
[REDACTED
4]@Gmail.com
[REDACTED
5]@Gmail.com
[REDACTED
6]@Gmail.com

Outgoing emails
5 emails to
[REDACTED
poster]@yahoo.com
1 email to
[REACTED
poster]@yahoo.com
1 email to
[REACTED
poster]@yahoo.com
3 emails to
[ REDACTED
poster]@yahoo.com

Incoming Emails
4 emails from
[REDACTED
poster]@yahoo.com
No response from
[REDACTED
poster]@Yahoo.com
No response from
[REDACTED
poster]@Yahoo.com
1 email to
[REDACTED
poster]@yahoo.com

Date Range
All on the same
day as the posting
On the same day
as the posting
On the day after
the posting
All on the day
after the posting

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 A.

The First Search Warrant Application Was Granted
The original application sought judicial authorization to seize and search the six

third-party Gmail accounts shown above for correspondence related to sexual misconduct with
minors for specific time periods the government represented were directly relevant to its
investigation of the two postings. The time periods were as follows:
GMAIL ACCOUNT
[REDACTED 1]@Gmail.com 17
[REDACTED 2]@Gmail.com 19
[REDACTED 3]@Gmail.com 21
[REDACTED 4]@Gmail.com 23
[REDACTED 5]@Gmail.com 25
[REDACTED 6]@Gmail.com 27

SEARCH DATE RANGE
30 days following the first posting18
30 days following the first posting20
7 days following the second posting 22
7 days following the second posting 24
8 days following the second posting 26
8 days following the second posting 28

Because the request was for the limited time periods that were supported by
probable cause—namely, these periods corresponded to the same time these accounts had been
used to contact the problematic Craigslist advertisement—and because the application otherwise
comported with the Fourth Amendment particularity requirement, this Court granted the first
application and authorized the government to seize email content from the six third-party Gmail
accounts from Google for the requested time periods. 29 However, when the warrant was served
Google unilaterally declined to turn over the requested information from the accounts, apparently
17
18
19
20
21
22
23
24
25
26
27
28
29

Aff. ¶ 23(d)
Aff., Attachment B, pg. 3.
Aff. ¶ 23(d).
Aff., Attachment B, pg. 3.
Aff.¶ 23(e).
Aff., Attachment B, pg. 3.
Aff. ¶ 23(e).
Aff., Attachment B, pg. 3.
Aff. ¶ 23(e).
Aff., Attachment B, pg. 3.
Aff. ¶ 23(e).
Aff., Attachment B, pg. 3.
In the Matter of the Search of Google Email Accounts Identified in Attachment A, 3:14-mj-00352-KFM.
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 claiming an inability to comply with the date range limitation set forth in the warrant. 30 In
particular, Google asserted:
We have received your Search Warrant and after evaluating the items to be seized,
we have determined that Google is not capable of identifying the specific records
responsive to your request as currently described in the warrant. Because our
production must adhere to the stated limits of the warrant, and we are unable to do
so in this case, we require amended or re-issued process. 31
Rather than seek an order compelling Google to comply with the original warrant,
the government presented the Court with a second application. The agent explained that
“Google was unable to comply with the warrant as written because the time frame was too
narrow,” “Google is unable or unwilling to parse individual accounts for” the specific emails,
and “Google typically provide[s] broad ranges of information and place[s] the burden on the law
enforcement officer searching the information to stay within the parameters of the warrant.” 32
B.

The Second Search Warrant Application Eliminates Any Date-Range
Limitation
The current application seeks judicial authorization to seize the entire contents of

the six third-party Gmail accounts, described as follow: 33
[T]he contents of electronic or wire communications held in the SUBJECT
ACCOUNTS, including:
a)
all electronic or wire communications with a minor or any person
purporting to be a minor, or claiming to have access to a minor, or that
otherwise involve the enticement of a minor to engage in sexual activity for
which any person can be charged with a criminal offense (including email
text, attachments, and imbedded files) in electronic storage by the
PROVIDER, or held by the PROVIDER as a remote computing service (if
any), within the meaning of Stored Communications Act;
b)
all photos, files, data, or information in whatever form and by
whatever means they have been created or stored relating to a minor, or
30

Aff. ¶ 24
Id..
32
Aff. ¶ 24
33
Aff., Attachment B, ¶ 3.
31

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 individuals claiming to have access to a minor, or otherwise involve the
enticement of a minor to engage in sexual activity for which any person can
be charged with a criminal offense. 34

Once the government obtains the entirety of the email accounts from Gmail, it represents that it
will only seize evidence from those accounts within the date ranges reflected in the first search
warrant—i.e., the time periods that correspond to when these accounts were used to contact the
problematic Craigslist advertisement. 35
In other words, the government’s second warrant requests authorization to seize
the six third-party Gmail accounts in their entirety. Once the contents of the accounts are in its
possession, the government appears to promise not to look at any emails outside the applicable
date ranges. However, the warrant would not limit its ability to search the entirety of the Gmail
accounts as the proposed warrant plainly authorizes the inspection of all email content in the
accounts without regard to how remote in time or unrelated that content is to the current
investigation.
Under these circumstances, the present application must be denied as overbroad.
III.

DISCUSSION

A. The Applicable Law
The Stored Communications Act of 1986 36 authorizes the government to obtain
the “contents of electronic communication” that are in electronic storage in “an electronic
communications system” pursuant to a search warrant under the Federal Rules of Criminal
Procedure. 37 Google, by hosting Gmail, qualifies as an electronic communication system that

34

Aff., Attachment B, ¶ 3.
Aff., Attachment B, ¶ 4.
36
18 U.S.C. §§ 2701-2712.
37
See 18 U.S.C. §§ 2703(a), 2703(B)(1)(A).
35

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 holds the “contents of electronic communication” in “electronic storage.” The Fourth
Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath
or affirmation, particularly describing the place to be searched and the persons or things to be
seized.” 38
It is a bedrock principle of Fourth Amendment law that “a magistrate may
authorize a search of a location only if officers establish probable cause to believe evidence of a
crime may be found there.” 39 Probable cause means “there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” 40
The Fourth Amendment also requires that search warrants describe items to be
seized and the premises or persons to be searched with sufficient particularity. This requirement
ensures that search warrants do not take on the character of a wide-ranging exploratory “general
warrant,” forbidden by the Fourth Amendment. 41 The particularity requirement bars overbroad
search warrants. “‘Breadth deals with the requirement that the scope of the warrant be limited by
the probable cause on which the warrant is based.’” 42 Stated another way, overbreadth is a
tailoring question: does the proposed warrant limit the government’s search to the specific
places that must be inspected to confirm or dispel the suspicion that gave rise to probable
cause? 43
38

U.S. Const. Amend IV.
United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006).
40
United States v. Neeham, 718 F.3d 1190, 1194 (9th Cir. 2013) (quoting Illinois v. Gates, 462 U.S, 213,
238 (1983)).
41
Payton v. New York, 445 U.S. 573, 584 n. 21 (1980) (retracing the roots of the particularity requirement
to the colonialists’ objections to the writs of assistance); United States v. Nafzger, 965 F.2d 213, 214 (7th
Cir. 1992).
42
Hill, 459 F.3d at 973 (quoting United States v. Towne, 997 F.2d 537, 544 (9th Cir. 1993)).
43
Maryland v. Garrison, 480 U.S. 79, 84 (1987) (“By limiting the authorization to search to the specific
areas and things for which there is probable cause to search, the requirement ensures that the search will
be carefully tailored to its justifications, and will not take on the character of the wire-ranging exploratory
searches the Framers intended to prohibit.”) (emphasis added); see also United States v. Cardwell, 680 F.2d
75, 78 (9th Cir. 1982); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §
39

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 The rise of personal computing and networking has heightened the risk of
overbroad warrants. After all, when the government seeks to search electronic data for evidence
of a crimes on a personal computer, how data is stored and how it can be hidden or disguised
generally requires that the government search all of the files:
This pressing need of law enforcement for broad authorization to examine
electronic records . . . creates a serious risk that every warrant for electronic
information will become, in effect, a general warrant, rendering the Fourth
Amendment irrelevant. The problem can be stated very simply: There is no way to
be sure exactly what an electronic file contains without somehow examining its
contents—either by opening it and looking, using specialized forensic software,
keyword searching or some other such technique. But electronic files are generally
found on media that also contain thousands or millions of other files among which
the sought-after data may be stored or concealed. By necessity, government efforts
to locate particular files will require examining a great many other files to exclude
the possibility that the sought-after data are concealed there. 44
Thus, the reality is that “over-seizing is an inherent part of the electronic search process” that
will be “far more common than in the days of paper records.” 45
This inherent over-seizure necessarily risks over-searching. 46 In constitutional
terms, the balancing of the interests of personal privacy with the government’s need to
investigate criminal conduct in the information age boils down to this important question: does
permitting unrestricted access to over-seized data improperly bring constitutionally protected
data within the plain view exception of the warrant requirement and transform electronic data
search warrants into general warrants? 47

3.7(d) at 546 (West, 5th ed. 2012) (describing overbreadth as the “object-place nexus” issue, and noting
that the problem arises when a search warrant describes “the place be searched in broader terms than is
justified by the probable cause showing in the affidavit.”).
44
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc) (per
curiam).
45
Id. at 1177.
46
Id. at 1176.
47
United States v. Schesso, 730 F.3d 1040, 1047 (9th Cir. 2013) (citing Comprehensive Drug Testing, Inc.,
621 F.3d at 1171).
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 The answer depends on whether, given the facts of a particular case, overseizure/over-searching can be avoided. To ensure that Fourth Amendment principles are carried
forward into the information age, the Ninth Circuit has admonished judicial officers to be
vigilant
in striking the right balance between the government’s interest in law enforcement
and the right of individuals to be free from unreasonable searches and seizures. The
process of segregating electronic data that is seizable from that which is not must
not become a vehicle for the government to gain access to data which it has not
probable cause to collect. 48
Thus, simply because over-seizure and over-searching is a risk in electronicallystored-data search cases does not authorize “an automatic blank check when seeking or
executing warrants.” 49
Although computer technology may in theory justify blanket seizures . . . , the
government must still demonstrate to the magistrate factually why such a broad
search and seizure authority is reasonable in the case at hand. There may be
situations where the government has no basis for believing that a computer search
would involve this kind of technological problems that would make an immediate
onsite search and selective removal of relevant evidence impracticable. Thus, there
must be some threshold showing before the government may “seize the haystack to
look for the needle.” 50
With the Fourth Amendment’s principles and the Ninth Circuit’s admonishment to curb
over-seizure/over-searching when possible in mind, the Court turns to the warrant request
in this case.
B. Application
This case well-illustrates the tensions addressed above, as it involves a probablecause showing by the government that implicates only a few email transactions, yet the
government seeks to obtain the Gmail email accounts in their entirety. As noted above, probable

48
49
50

Comprehensive Drug Testing, Inc., 621 F.3d at 1177.
Hill, 459 F.3d at 975.
Id. (emphasis in original).
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 cause exists when “there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” 51 Here, a grand jury subpoena revealed that the six subject Gmail accounts
responded to a Craigslist advertisement that solicited sexual encounters with underage girls. The
government seeks to confirm or dispel its suspicions that the users of the six Gmail accounts
were interested in unlawful sexual contact with minors. Based on this record, the Court
concludes that there is probable cause to believe that these email responses to the advertisement
contain evidence of a crime—namely, that there was a fair probability that these responses show
an interest in the illegal conduct solicited in the Craigslist advertisement.
However, the scope of the government’s authority to search and seize under the
warrant is not tailored to its probable cause showing. A warrant is overbroad if it expands the
scope of the government’s search beyond the places implicated by the probable-cause showing. 52
Here, the warrant sought by the government is overbroad because it would authorize the
government to seize and search the entirety of the six Gmail accounts, even though the
government has only established probable cause to look at a small number of emails within a
narrow date range.
In this instance, the government knows the precise dates the problematic
advertisements were posted, the precise dates of the email correspondence relating to the
problematic advertisements, and the individual email addresses that were used to send and
receive the correspondence. This is not a case where the government has established that
evidence a crime lurks somewhere on a computer or third-party network, and law enforcement
has a legitimate need “to scoop up large quantities of data, sift through it, carefully for concealed

51
52

Neeham, 718 F.3d at 1194 (quoting Gates, 462 U.S at 238).
Hill, 459 F.3d at 973 (quoting Towne, 997 F.2d at 544).
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 or disguised pieces of evidence . . . .” 53 Rather, this is an electronic-data case where the
government has established probable cause that a specific date range of email communications
may contain evidence of a crime. There has been absolutely no showing that the remaining
balance of the email accounts would have any bearing on the investigation.
The facts of this case well-illustrate the troubling implications to Fourth
Amendment jurisprudence of allowing the government to seize and inspect a person’s entire
email account. The warrant application establishes that three of the Gmail accounts each sent
multiple emails to the Yahoo account that were responded to by the Yahoo account. But the
application also showed that the other three Gmail accounts each sent only one email to the
Yahoo account and never got a response. Common sense dictates that a prolonged back-andforth conversation between the poster of the advertisement and a viewer of the advertisement
may present a situation where both parties are comfortable with the posting and they are
negotiating further details. By contrast, the probable cause calculus for the three Gmail accounts
sending only a single email without any response is a closer question. Indeed, single email sent
by a viewer of the advertisement that does not receive a response from the poster may simply
reflect a situation where the viewer was uncomfortable with the advertisement and elected to
contact the poster to voice disapproval and/or to demand the its removal. Regardless, given the
gravity of the offense at issue (sexual exploitation of minors) and the manner by which Craigslist
is accessed (someone has to purposefully navigate to the personal sections of the website), the

53

Comprehensive Drug Testing, Inc., 621 F.3d at 1176 (citing Hill, 459 F.3d 966); see also Schesso, 730
F.3d at 1045-46 (“There is no question that there was probable cause to believe that Schesso possessed the
particular child pornography video uploaded to eDonkey in October 2008. Given the circumstances of that
upload and the information supplied in the warrant application, the state court judge permissibly drew the
‘reasonable inference’ that there was probable cause to believe Schesso had other child pornography
materials as well.”).
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 Court concludes that there was a fair probability that these particular communications may
contain evidence of a crime.
Based on these probable-cause conclusions, a narrow intrusion into the email
accounts is warranted. But the present application goes well beyond the narrow intrusion
justified by the probable cause showing. It seeks judicial authorization to seize and then search
the entire content of the six third-party Gmail accounts with no justification other than that
Google has unilaterally elected not to comply. 54
Under these circumstances, the present application must be denied as overbroad
because its request to seize and search the six Gmail accounts in their entirety is not tailored to
its narrow probable cause showing for the limited time periods approved in the first warrant.
IV.

CONCLUSION

For all these reasons, Search Warrant Application 3:14-mj-0387-KFM is
denied. However, the Court’s denial is without prejudice. The Court well-appreciates that the
government is in a difficult position. It has shown probable cause for a narrow range of email
communications, but Google has advised that it cannot or will not provide this narrow selection
of data. Consistent with the Ninth Circuit’s admonishment for “greater vigilance . . . in striking
the right balance between the government’s interest in law enforcement and the right of
individuals to be free from unreasonable searches and seizures” 55 and with the understanding
that Google has claimed that it cannot or will not provide emails from only the narrow date
ranges sought, the Court reiterates that the government has two alternative avenues through
which to seize and search the sought-after emails. First, the government remains free to seek an

54

Additionally, the government lawfully seized the computer used to post the two Craigslist advertisements.
There is no indication that the content of the correspondence from the six Gmail accounts responding to the
advertisements could not be recovered from that computer.
55
Comprehensive Drug Testing, Inc., 621 F.3d at 1177.
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 order compelling Google to comply with the earlier warrant provided it limits the request to
email content for the narrowly defined periods relevant to the investigation of the six third-party
Gmail accounts. 56 Alternatively, the government can renew the instant application provided it
proffers to seal, without any review absent further court order, material supplied by Google that
is outside the time period for which probable cause has been established. 57

DATED this 3rd day of March, 2015, at Anchorage, Alaska.
S/ KEVIN F. MCCOY
UNITED STATES MAGISTRATE JUDGE

56

In the Matter of the Search of Google Email Accounts Identified in Attachment A, 3:14-mj-00352-KFM.
See e.g. In re the Search of Information Associated with [redacted]@mac.com that is Stored at Premises
Controlled by Apple, Inc., 13 F. Supp. 3d 157, 161 (D.D.C. 2014) (“Attachment C to the government’s
revised application included the specific procedures for executing the search warrant wherein the
government would first conduct a search of the e-mails produced by the Provider and determine which are
within the scope of the information to be seized specified in Attachment B, and then copy and retain those
emails that are within the scope of Attachment B. Law enforcement personnel would then seal any
information from Apple that does not fall within the scope of Attachment B. and would be prohibited from
further review [of] the information absent an order of the Court.) (internal citations omitted).
57

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