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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

   

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APPLICATION FOR WARRANT )
FOR ACCOUNT ~ )

Heoacte:tj , GMAIL_CDM )
MAINTAINED ON COMPUTER SERVERS -) \’\<\ a.g.
OPERATED BY GOOGLE, INC., ) Ma'j'. No. 10-29l-M-01
HEADQUARTERED AT ) (A.K/JMF/RCL) _ _
1600 AMPHITHEATRE PARKWAY ) - __
MOUNTAIN VIEW, CA ’ ) F I L E D

) nov -1 2010
Clark, U.S. District & Bankruptcy
MEMORANDUM AND ORDER Cnurts for the District of Columb\a

Before the Court is the government’s Motion for Review of Magistrate Judge’s July 21,
2010 Memorandurn Order Regarding N0tice Obligations for E-Mail Warrants Issued Under
ECPA. Upon consideration of the government’s motion and the July 21, 2010 Mernorandum
Order, the motion will be GRANTED and the Memorandum Order will be REVERSED.

I. BACKGROUND
0n May 28, 2010, the n government applied for a warrant unrier the Electronic

Communications Privacy Act, 18 U.S.C. §§ 2701-2'710 ("ECPA"), to comp 1 the disclosure of

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certain limited contents of the e-mail account ) gniail.com, maintained by Google,

Inc. ("Google"). Magish'ate Judge Alan Kay reviewed and issued the warrant In so doing,

Magistrate Judge Kay checked the box on the face of the warrant form wing for delayed
notification under 18 U.S.C. § 3 103 a. The government had not requested de yed notification in
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its warrant application. On June 8, 2010, the govemment filed a Motion for l arification seeking

to clarify Magistrate Judge Kay’s intent in checking the box.

 

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On July 21, 2010, Magistrate Judge John Facciola entered a Memorandum Order
adjudicating the govemment’s Motion for Clarification. lu his Memorandum Order, Magistrate
Judge Facciola held that the government was obligated to notify the subscriber or customer of
the e-mail account subject to the FCPA warrant The government believed that Magistrate Judge
Kay had already adjudicated its Motion for Clarification.l Accordingly, on July 23, 20l0, the
government filed a motion to vacate, or in the altemative, for reconsideration of Magistrate
Judge Facciola’s Memorandum Order ("Motion to Vacate"). In the Motion to Vacate, the
government also sought an order staying the unsealing of the Memorandum Order pending
adjudication of the Motion to Vacate and its further review, if necessary, by this Court.

On August 4, 2010, while the Motion to Vacate was pending, the government sought an
enlargement of time to seek this Court’s review of the Memorandum Order until fourteen days

after adjudication of the Motion to Vacate. On August 5, 2010, this Court granted that motion.

. This Court also granted the govemment’s request that the Memorandum Order, Motion to

Vacate, Motion for En1argement, and any adjudication of the Motion to Vacate remain sealed
pending the Court’s review.

On August 23, 2010, Magistrate Judge Facciola issued a Minute Order denying the
govemment’s Motion to Vacate. The order indicates that Magistrate Judge Facciola consulted
with Magistrate Judge Kay, who believed that the government "would still provide notice to the

subscriber, regardless of whether it was delayed," The order states that Magistrate Judge Kay

' On June 17, 20l0, having reviewed the govemment’s Motion for Clarification, Magistrate Judge Kay contacted
Gregg Maisel, then-acting Chief of the National Security Section of the United States Attomey’s Oftice ("USAO").
According to the govemment, Magistrate Judge Kay indicated that he had checked the box on the face of the
warrant in error and believed that the g0vemment had no notice obligation. Magistrate Judge Kay asked the USAO
to submit a copy of the warrant with his original signature, which he would correct On June 21, 2010, Chief Maisel
returned the original warrant to Magistrate Judge Kay. Magistrate Judge Kay marked "checked in error AK" next to
the delayed notification provision and retumed the warrant to the USAO.

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withdrew the delayed notice because he believed that the government “would notify the
subscriber without delay." The order further states that Magistrate Judge Kay agreed with the
analysis in Magistrate Judge Facciola’s Memorandurr1 Order.

The government does not seek further review of its Motion to Vacate. Rather, it seeks
review and reversal of the Memorandum Order on its merits. The government offers three
grounds for reversal: (l) that the Memorandum Order is contrary to the plain language of the
ECPA’s notice provisions and the govemment’s obligations under those provisions; (2) that the
ECPA provisions regarding warrants for the compelled disclosure of electronic communications
do not incorporate the provisions of Fed. R. Crim. P. 4l(f)(l)(C); and (3) that Rule 41(£)(1)(€),
even assuming it is incorporated into the ECPA, is satisfied by providing notice to the third
party, typically an lnternet Service Provider (“ISP"), from whom the disclosure is compelled
pursuant to an ECPA warrant.

This Court finds that Section 2703(b)(l)(A) of the ECPA incorporates all procedural
aspects of Rule 41, including Rule 4l(f)(l)(C). The Court fmds, however, that Rule 4l(i)(l)(C)
is satisfied by leaving a copy of the warrant with a third-party ISP. Accordingly, the Court
grants the govemment’s motion for review and reverses the July 21 , 2010 Memorandum Order.

H. DISCUSSION

The warrant at issue sought the contents of an e-mail account maintained by Google. The
government applied for this warrant under Section 2703(b)(l)(A) of the ECPA.Z Section
2703(b)(l) provides that:

A governmental entity may require a provider of remote computing
servicea to disclose the contents of any wire or electronic communication

z Section 2703(b) pertains to compelled disclosure by a provider of remote computing service. Section 2703(a)
pertains to compelled disclosure by a provider of electronic communication service.
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to which this paragraph is made applicable by paragraph (2) of this
subsection-

(A) without required notice to the subscriber or customer, if the
governmental entity obtains a warrant issued using the procedures
described in the F ederal Rules of Criminal Procedure (or, in the case of a
State court, issued using State warrant procedures) by a court of competent
jurisdiction; or

(B) with prior notice from the govemmental entity to the subscriber or
customer if the govemmental entity--

(i) uses an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury or trial subpoena; or

(ii) obtains a court order for such disclosure under subsection (d)
of this section;

except that delayed notice may be given pursuant to section 2705 of this
title.

The govemment contends that Section 2703(b)(l)(A)’s plain language does not require notice to
the subscriber or customer whose communications are subject to an ECPA warrant. As the

govemment argues, only Section 2703(b)(l)(l3), which pertains to compelled disclosure through

the use of an administrative subpoena or court order, requires prior notice.

The govemment’s argument falls short. Under Section 2703(b)(l)(A), a govemmental
entity seeking compelled disclosure must "obtain[] a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure." Specifically, Rule 41 pertains to the

issuance of warrants. Thus, the questions before the Court are (l) whether Rule 4l(i)(l)(C)

3 The ECPA defines "rernote computing service" as "the provision to the public of computer storage or processing
services by means of an electronic communications system." 18 U.S.C. § 2711(2). An "electronic communications
system” is "any wire, radio, electrornagnetic, photooptical or photoelectronic facilities for the transmission of wire
or electronic communications, and any computer facilities or related electronic equipment for the electronic storage
of such communications." Id. § 2510(14).
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applies to warrants issued under Section 2703{b)(l)(A), and (2) if so, whether Rule 41(1)(1)(€) is
satisfied by leaving a copy of the warrant with a third-party ISP.
A. Application of Rule 41 to Section 2703(7))(1)(/1)

The Court’s analysis must begin with the statutory text. Prior to 200l, the ECPA
permitted a govemmental entity to require the disclosure of electronic communications if the

govemmental entity obtained "a warrant issued under the Federal Rules of Criminal Procedure."

' 18 u.s.c. § 2703@)(1)(».) (1993) (emphasis added), amended by Pub. L. No. 107-56, §

220(a)(l). In 200l, the USA PATR10T Act amended the ECPA to permit compelled disclosure

if a govemmental entity obtains "a warrant issued using the procedures described in the Federal

Rules of criminal procedures Id. § 2703(1»)(1)(,4) (2009) emphasis ddded).‘

The plain language of amended Section 2703(b)(l)(A) incorporates the procedural, not
substantive, provisions of Rule 41. Other courts have reached this conclusion with regard to
Section 2703(a), which includes the same amended language as Section 2703(`b)(l)(A).5 See,
e.g. , 1n the Maz‘ter of the Application of the United States of America for a Search Warrant, 665
F. Supp. 2d l2l0, 1217 (D. Or. 2009); In re Search of Yahoo, Inc., No. 07-3194-1\/113, 2007 WL
l53997l, at *6 (D. Ariz. May 21, 2007).

The inquiry does not end there, however, Rule 41 ’s procedural provisions relate both to
the issuance and execution of a warrant. The government contends that Section 2703(b)(l)(A)
incorporates only those procedural provisions of Rule 41 that relate to the issuance of a warrant

(i.e., Rules 4l(d) and 4l(e)). The govemment thus argues that Rule 41(f), which relates to the

‘ The PA'I'RIOT Act made the same amendment to Section 2703(a).
5 For our purposes, the distinction between Sections 2703(a) and 2703(b)(l)(A) is not relevant. Both subsections
contain the same amended language directing that warrants be "issued using the procedures described in the Federal
Rules of Criminal Procedure." See 18 U.S.C. §§ 2703(&), 2703(b)(l)(A).
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' execution and return of a warrant, does not apply to Section 2703(b)(l)(A). In cont:rast,

Magistrate Judge Facciola’s Memorandum Opinion reads Section 2703(b)(l)(A) to incorporate
Rule 41 ’s provisions, including Rule 41(1)(1)(€).

Neither the ECPA’s text nor its legislative history indicate the extent to which Rule 41 ’s
procedures have been incorporated. See S. Rep. No. 99-541, at 37 (1986) (surnmarizing Section
2703’s text without additional explanation). lndeed, it is reasonable to read the language "issued
using the procedures described in the Federal Rules of Criminal Procedure” to support either a
lirnited or wholesale incorporation of Rule 41 ’s procedures Among those courts to have
considered the applicability of Rule 41 to Section 2703(a), none have faced the question of

which procedural provisions have been incorporated.°

The government contends that it would be incongruous to apply Rule 4l(t) to ECPA
warrants. It argues that Rule 41(t) describes steps a law enforcement officer must take while
present for the execution of a search warrant, whereas the presence of a law enforcement officer
“shall not be required for service or execution" of ECPA warrants. 18 U.S.C. § 2703(g). But it
is unsurprising that some provisions applicable to ordinary search warrants do not fit neatly into
Section 2703. Thus, the govemment’s argument does not weigh strongly in favor of the limited

view it asks the Court to adopt.

6 Rather, these courts have determined that Rule 4l(b) is substantive and thus inapplicable to ECPA warrants. See,
e.g., United States v. Berkos, 543 F.3d 392, 392 (7th Cir. 2008); In re Search of Yah00, Inc., No. 07-3 l94-MB, 2007
WL 1539971, at *7 (D. Ariz. May 21, 2007); In re Search Warran!, No. 6:O5-MC-168-Orl-3lJGG, 2005 WL
3844032, at *6 (M.D. Fla. Feb. 13, 2006); United States v. Kernell, No. 3ZO8-CR-l42, 2010 WL 1408437, at *4
(E.D. Tenn. 20l0).

In the absence of textual or legislative guidance, this Court concludes that all of Rule 41 ’s
procedural provisions apply to Section 2703(b)(l)(A), including Rule 41(£)(1)(€). As described

below, however, 41 (t)(l)(C) is satisfied by leaving a copy of the warrant with a third~party ISP.
B. The Government’s Gbligations under Rule 41({)(1) (C)

Magistrate Judge Facciola’s Memorandum Order refers to "the notice thus required by
Rule 41." Mem. Order at 7. As the govemment notes, however, the relevant portion of Rule 41

does not include the word "notice." Rather, Rule 4l(i)(l)(C) requires that:

The officer executing the warrant must give a copy of tire warrant and a
receipt for the property taken to the person from whom, or h:om whose
premises, the property was taken or leave a copy of the warrant and receipt
at the place where the officer took the property.

Rule 41 thus allows an oflicer to give a copy of the warrant and a receipt to the person from
whose premises the property is tal<en, even if that person does not own the property. There is no
separate requirement that the property’s owner receive a copy of the warrant, a receipt, or any
other form of notice. Thus, the Eighth Circuit found that police complied with a state rule of
criminal procedure virtually identical to Rule 4l(f) when they left a copy of their warrant and a
receipt at the Federal Express facility from which they had seized a package. United States v.
Zacher, 465 F.3d 336, 339 (8th Cir. 2006). The court held that it was therefore "irnmateria " to

notify the defendant of the seizure. Id.

Analogizing to Zacher, the district court in In the Matter of the Applz'catz'on of the United
States ofAmerica f)r a Search Warrant found that the govemment satisfied Rule 41(£)(1)(€) by

serving  ECPA warrant on third-party ISPs. As the court explained:

The ISPs are analogous to FedEx in Zacher; the electronic information
was stored on the servers at Google and Webhost the same way the
package was stored at FedEx. Requiring notice to the subscriber ignores

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this third-party context. When the property to be seized is in the
possession of a third party, Rule 4l(f)(l)(C) requires no more than what
was already accomplished in this case.

665 F. Supp. 2d at 1221-22. Similarly, in this case, the government served its warrant on
Google, a third-party ISP. In so doing, the govemment satisfied Rule 4l(f)(l)(C). Accordingly,
even under a reading of Section 2703(b)(l)(A) that incorporates Rule 41(f), the government has
no further obligation to notify the subscriber of the e-mail account at issue.
III. CONCLUSION AND ORDER

F or the reasons discussed above, it is hereby

ORDERED that the govemment’s Motion for Review is GRANTED; and it is

FURTHER ORDERED that the Magistrate Judge’s July 2l, 2010 Memorandum Order
is REVERSED; and it is

FURTHER ORDERED that the govemment is not required to give notice to the
subscriber or customer of an e-mail account whose account is the subject of a warrant issued

under the Electronic Communications Privacy Act, §§ 2701-2710; and it is

FURTHER ORDERED that the Clerk’s office shall not make any entry on the public
docket in this case of the govemment’s Motion for Review and this Order granting such motion,

until further order of this Court.

SO ORDERED this /;rday ofNovember 2010.  aid cCt’/¢/ l/z 1~5 feed

Qc. j~z/VW-

RoYeii§' c. L/EMBERTH
Chief Judge
United States Distn`ct Court

 

