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Jun 30 2016   8:54PM GMT

Court Backtracks on Ganias Data Collection

Sharon Fisher Sharon Fisher Profile: Sharon Fisher

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E-discovery
ediscovery
government
law
privacy
Security

Let’s say you were bad. (Of course, none of you are, but let’s say you were, for the sake of argument.) The government wants to look at a few files on your computer, but makes a copy of all of them, because, you know, it’s just easier.

Then, three years later, the government decides you were bad again. And remember all those files it had picked up the first time you were bad, that it didn’t really need but just picked up because it was easier? It goes back through those files, which it still had, and uses them to convict you on the new charge.

It sounds nuts, but that’s what’s happened to a Connecticut accountant, Stavros Ganias. As he was the accountant for a company suspected of fraud with the Army, the Army wanted to look at the relevant files on his computers. To do this, in 2003 it made a mirror copy of his files – all of them, including his personal financial data – and took it back to look at.

In 2006, the Internal Revenue Service – which had been working with the Army on the case – decided that perhaps Stavros had failed to properly declare his income. So the IRS got a warrant to look at the files it already had of Ganias’ personal financial data, instead of going back to him to get copies. You know, since the government had it around anyway. After he was convicted, he appealed, saying the government shouldn’t have had that data in the first place. But the Second Circuit court has now ruled that it was okay for the government to do that.

Fun With the Fourth

The thing is, the whole point of having a Fourth Amendment and requiring a warrant at all is so the government can’t just seize everything you have and go on a fishing expedition, or what is called a “general” warrant – a point that Judge Denny Chin, who wrote the original opinion, made in a 40-page dissent.

Frustratingly, the Second Circuit court had originally ruled the other way – with a ruling that had been praised by civil liberties advocates. “Courts have long held that the practicality of computer search and seizure allows government agents to seize computers and search them later for responsive files,” wrote Orin Kerr of the Volokh Conspiracy in June, 2014, in the Washington Post, about the original ruling. “In Ganias, the Second Circuit makes clear that the government’s right to overseize is temporary, and that it has no right to continue to retain the non-responsive files indefinitely. The court doesn’t say exactly when the government has to destroy, delete, or return its copy of the non-responsive files. But the Second Circuit does make clear that the government has such a duty.”

However, a year later, the Second Circuit decided, on its own, to reconsider the case en banc. In other words, rather than having three judges decide the case, all 13 judges heard it in one big group, which happens only every couple of years or so with major cases. The en banc court overturned the Second Circuit’s original ruling.

Now, all bets are off, writes Andrew Crocker, staff attorney for the Electronic Frontier Foundation (EFF).  “Had Ganias’ files been stored on paper, this would have been a simple case,” he writes. “As the Ninth Circuit explained in United States v. Tamura, police may do a cursory examination of files in a filing cabinet to determine which are included in a warrant, but they can only seize items outside that warrant for off-site review in very limited circumstances. And even then, non-responsive items must be promptly returned.”

Storage is Hard

What led the en banc Court to make a different ruling? Because otherwise it would be too hard to separate the data, it ruled. In fact, the government’s original request for a rehearing was on the grounds that not using the additional files would be too expensive.

The court also said the additional files couldn’t have been returned or destroyed in the first place because of the need to preserve the chain of evidence, and because hard disks store files in all sorts of little pieces scattered all over the place. “Though to a user a hard drive may seem like a file cabinet, a digital forensics expert reasonably perceives the hard drive simply as a coherent physical storage medium for digital data — data that is interspersed throughout the medium, which itself must be maintained and accessed with care, lest this data be altered or destroyed,” the Court writes.

Besides, since it had gone to the effort of getting the second warrant, obviously the DOJ meant well, writes Scott Greenfield in the Simple Justice legal blog. “It’s not that the en banc majority disputed the idea that computer hard drives contained vast amounts of information beyond that for which the warrant authorized seizure, or the government holding onto the entirety of the mirrored hard drive evidence for two and half years beyond the end of the investigation for which it was seized, just because,” he writes. “It’s that, by obtaining a second warrant, all evils magically disappear, because it was covered by the government’s ‘good faith.’”

Well, He Didn’t *Ask* for It Back

In addition, the court points out that since Ganias hadn’t asked to have his data returned, apparently he didn’t mind that the government kept a copy of it. But that was specious, Kerr wrote in 2014, when that question came up before. “Imposing such a prerequisite makes little sense in this context, where Ganias still had the original computer files and did not need the Government’s copies to be returned to him,” he writes. Moreover, if the government has been saying it was too hard to return them or delete them anyway, what would be the point of his asking for it? he continued.

Ultimately, this ruling might apply to other cases as well, Crocker warns. “The court’s discussion of Ganias’ failure to seek the return of his data before 2006 could set a dangerous norm of allowing broad searches, putting the burden on users to sue the government if they object,” he writes. “By failing to require the deletion of overcollected data, the Ganias court may provide a perverse incentive to retain when the government has no good reason to do so.”

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