In re Search of Info. Associated with One Email

677 F.Supp.3d 580

In the MATTER OF the SEARCH OF INFORMATION ASSOCIATED WITH ONE EMAIL ACCOUNT THAT IS STORED AT PREMISES CONTROLLED BY GOOGLE, INC.

Crim. No. 4:23-MJ-174-KPJ

United States District Court, E.D. Texas, Sherman Division

Signed June 16, 2023

REDACTED AMENDED OPINION AND ORDER

KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Movant's Motion to Quash Search and Seizure Warrant (the "Motion") (Dkt. 3), wherein Movant seeks to quash the search warrant issued as to his personal email address.¹ See id. at 1. The Government filed a response (Dkt. 4) opposing the Motion (Dkt. 3), and Movant filed a reply (Dkt. 5). Upon consideration, the Motion (Dkt. 3) is hereby DENIED.

I. BACKGROUND

On April 24, 2023, the Government filed an application and affidavit in support of a search warrant (the "Search Warrant Application and Affidavit") (Dkt. 1), requesting information associated with two email accounts, a personal email address and a professional email address, both of which are stored at premises controlled by Google, Inc. ("Google"), and are related to allegations that Movant committed violations of 18 U.S.C. § 1343 (Wire Fraud). See id. at 2-3. In the Affidavit (Dkt. 1), the Federal Bureau of Investigation Agent swears there is probable cause to believe Movant committed wire fraud. See id. at 4. The Agent further swears Movant communicated using the email addresses with others regarding alleged unlawful expenses and in relation to different allegedly unlawful transactions. See id. at 4-8.

On April 24, 2023, a search and seizure warrant was issued as to Movant's personal email address pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703 (the "Search Warrant") (Dkt. 2).² Attachment A to the Search Warrant (Dkt. 2) states that the property to be searched applies to information associated with the personal email address, which is stored at premises controlled by Google. See id. at 3. Section I of Attachment B to the Search Warrant (Dkt. 2) sets forth information to be disclosed by Google, and Section II sets forth information to be seized by the Government. See id. at 4-6. Specifically, Section II states in relevant part:

All information described above in Section I that constitutes evidence, fruits, and instrumentalities of violations of Title 18 United States Code Sections 1343, those violations involving [Movant], and others occurring on or after July 31, 2018, and on or before April 17, 2023, including for each email account or identifier listed in Attachment A pertaining to the following matters:

Id. at 5-6. Following the colon, the Search Warrant (Dkt. 2) sets forth four different subject matter categories . . . .

On May 3, 2023, Google informed Movant of the Search Warrant (Dkt. 2). See Dkt. 3 at 1-2. On May 5, 2023, Movant filed the Motion (Dkt. 3) asserting he has an objectively reasonable expectation of privacy in his Google email account and, as such, his Google email account is protected by the Fourth Amendment and the Stored Communications Act, 18 U.S.C. § 2701 et. seq. (the "Stored Communications Act" or "SCA"). See Dkt. 3 at 2. Movant further asserts his Google email account contains privileged information, including attorney-client information. See id. at 1. Movant argues the Search Warrant (Dkt. 2) is an "impermissible general warrant" and the Search Warrant (Dkt. 2) is not saved by the scope of the Affidavit (Dkt. 1) because the Search Warrant (Dkt. 2) does not incorporate the Affidavit (Dkt. 1). Dkt. 3 at 4.

On May 19, 2023, the Government filed its response (Dkt. 4), wherein the Government represents that Google's processing of the Search Warrant (Dkt. 2) has been suspended until the Motion (Dkt. 3) is resolved. See Dkt. 4 at 1. The Government argues Movant does not have standing to challenge the Search Warrant (Dkt. 2) before its execution. See Dkt. 4 at 1-4 (citing In Re the Search of Information Associated With One Account Stored At the Premises Controlled by Facebook, Inc., No. 21-SC-1386 (GMH), 2021 WL 2302800, at *2-3 (D.D.C. June 4, 2021)). On May 23, 2023, Movant filed a reply (Dkt. 5), wherein Movant asserts he has standing to challenge the Search Warrant (Dkt. 2) under the Fourth Amendment. See Dkt. 5 at 1-4.

II. LEGAL ANALYSIS

The Stored Communications Act governs the privacy of stored communications in the United States and, inter alia, "permits a governmental entity to compel a service provider to disclose customer communications or records in certain circumstances." Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 250 (5th Cir. 2017) (citing 18 U.S.C. § 2703). Under the SCA, there are three methods for the Government to request electronic information: (1) "a warrant issued using the procedures described in the Federal Rules of Criminal Procedure," 18 U.S.C. § 2703(a), (b)(1)(A), (c)(1)(A); (2) a "court order for disclosure" issued based on the Government's offer of "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation," id. § 2703(d); and (3) "an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena," id. § 2703(b)(1)(B)(i), (c)(2).

In the present case, the Government requested a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure. Movant challenges the Search Warrant (Dkt. 2) on the basis that it is a "general warrant", Dkt. 3 at 4, and the Government responds that Movant does not have standing, see Dkt. 4 at 1-4. Movant filed a reply, contending he has standing to file a motion to quash under the Fourth Amendment, and that he has a "right to refuse" entry. See Dkt. 5 at 1-5.

The SCA grants only the provider of electronic communication services or remote computing services—not the subscriber or customer—the statutory right to file a motion to quash a search warrant. See 18 U.S.C. § 2703(h)(2) ("A provider of electronic communication service to the public or remote computing service, including a foreign electronic communication service or remote computing service, that is being required to disclose pursuant to legal process issued under this section the contents of a wire or electronic communication of a subscriber or customer, may file a motion to modify or quash the legal process . . . ."). The lack of a statutory right afforded to subscribers and customers to challenge a search warrant before it is executed is further evidenced in that the SCA allows the Government to execute a search warrant "without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure." Id. § 2703(b)(1)(A); see also id. § 2703(c)(3) ("A governmental entity receiving records under this subsection is not required to provide notice to a subscriber or customer."). "Thus, it is only the provider who is subject to the search and to whom notice . . . is due" and, as there is no meaningful interference with any possessory interests, "there is no seizure of 'tangible property [or] wire communication' . . . ." In re Monitoring of Glob. Positioning Sys. Info., No. 22-SC-764 (ZMF), 2022 WL 17817748, at *5-6 (D.D.C. Dec. 20, 2022) (citations omitted) (emphasis in original); see also In re Application of U.S. for Search Warrant for Contents of Electronic Mail and for Ord. Directing Provider of Electronic Commc'n Servs. to not Disclose Existence of Search Warrant, 665 F. Supp. 2d 1210, 1224 (D. Or. 2009) ("Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not."). Accordingly, if notice need not be provided to the subscriber or customer, it must stand that the SCA does not grant Movant a right to move to quash the Search Warrant (Dkt. 2). See In re Search of Recs., Info., & Data Associated with 14 Email Addresses Controlled by Google, LLC, 438 F. Supp. 3d 771, 774 (E.D. Mich. 2020) (internal quotations omitted) ("The design and plain language of the SCA is clear that obtaining electronic evidence via a subpoena, which requires no judicial finding, must also include notice to the subscriber. Conversely, because a warrant requires a finding of probable cause by a neutral judicial officer, no notice is required prior to the warrant's execution.").

Additionally, as a court in the Eastern District of Pennsylvania explained, "granting standing to subjects of SCA warrants to intervene would undercut Congress' goals in passing the [SCA]" as it would "turn[ ] the swift execution of warrants into protracted legal battles that would prevent the Government from timely resolving its investigations." United States v. Info. Associated with Email Acct. (Warrant), 449 F. Supp. 3d 469, 475-76 (E.D. Pa. 2020) (citing In re Search of Information Associated with Facebook Accounts DisruptJ20, Lacymacauley, and Legba. Carrefour that is Stored at Premises Controlled by Facebook, Inc., No. 17 CSW 658, 2017 WL 5502809, at *9 (D.C. Super. Nov. 09, 2017)). Thus, policy considerations also weigh against finding that Movant has standing under the SCA to challenge the Search Warrant (Dkt. 2) ex ante. For these reasons, the Court finds that Movant does not have standing under the SCA to file a motion to quash the Search Warrant (Dkt. 2).

Furthermore, Movant does not have standing under the Fourth Amendment to file a motion to quash the Search Warrant (Dkt. 2). The Supreme Court has instructed courts that "[t]he Constitution protects property owners not by giving them license to engage the police in a debate...