ORDER RE DEFENDANTS' MOTION FOR DISCLOSURE OF GOVERNMENT COMPUTER SEARCH METHODOLOGY
On December 16, 2008, this matter came before the undersigned for hearing on defendants' motion for an order requiring the government to provide the defense with a detailed summary of its search methodology. (Doc. No. 331.) Assistant United States Attorneys Bob Twiss, Ellen Endrizzi, Jill Thomas and Robert TiceRaskin appeared on behalf of the United States. Federal Defender Daniel Broderick and Assistant Federal Defender Ben Galloway appeared on behalf of defendant Harrison Jack; attorneys John Balazs and Galia Phillips appeared on behalf of defendant General Vang Pao; attorney Mark Reichel appeared on behalf of defendant Lo Cha Thao; attorney William Portanova appeared on behalf of defendant Lo Thao; attorneys Jim Brosnahan, Raj Chatterjee and Nate Torres appeared on behalf of defendant Youa True Vang; attorney Krista Hart appeared on behalf of defendant Hue Vang; attorney Dina Santos appeared on behalf of defendant Chong Yang Thao; attorney Michael Bigelow appeared on behalf of defendant Seng Vue; attorney Shari Rusk appeared on behalf of defendant Chue Lo; attorney Dan Brace appeared on behalf of defendant Nhia Kao Vang; and attorney Hayes Gable appeared on behalf of defendant Dang Vang.
Attorney Michael Bigelow argued this motion on behalf of all defendants and Assistant United States Attorney Ellen Endrizzi argued for the government. For the reasons set forth below, the motion is denied.
Defendants seek an order requiring the government to provide the defense with a detailed summary of its search methodology, including, but not limited to the scope of the search, keyword searches, distinctive words and phrases and combinations of word and phrases utilized in the search of the computer hard-drives and other electronic storage devices obtained by the government in the investigation of this case as well as requiring that the defense obtain all data recovered by the government with the identification of each computer hard-drive or electronic storage device searched. Defendants contend that as a result of various search warrants executed in this case, a total of twenty computers and assorted electronic storage devices were seized. Through this motion, while raising concerns regarding possible overbroad execution of the search warrants, defendants seek disclosure of the search methodology employed by the government in combing through the information contained on the seized computers and storage devices including the keyword search terms employed and the fruits of those searches.
In their opposition to the motion, the government, as a courtesy, summarizes the search protocol it followed in searching the imaged copies of the seized computers and electronic storage media. That protocol described by the government was multi-layered and involved use of a taint team, made up of agents other than the primary case agents, to minimize the review by investigating agents of stored documents not authorized for seizure under the search warrants. The government acknowledges that it utilized key words and phrases and search terms in initially culling through the stored information so as to conserve resources, but declines to divulge those terms to the defense because they are protected work product. The government points out that all the computers and storage media seized pursuant to warrant have been "mirror-imaged" and the computers, storage devices as well as the mirror image copies have been returned to or provided to the defense. The government also argues that binding Ninth Circuit authority provides that where there is probable cause to search a computer or electronic storage device for evidence, executing agents may review all of the contents to identify those documents that are subject to seizure. Finally, at the hearing on the motion, the government addressed any remaining concerns regarding its continued possession of material that fell outside the scope of the warrant by offering to lodge such material under seal with the court.
The court is persuaded by the government's arguments in this regard. On the other hand, the court finds unpersuasive the defendants' attempts to minimize the importance of observation made by the Ninth Circuit in the recent decision in United States v. Giberson, 527 F.3d 882 (9th Cir. 2008). Rather, the undersigned finds the comments of the Ninth Circuit in that case to fully support the denial of defendants' motion. In Giberson the court rejected the defendant's challenge to the search of a mirror image of the hard drive seized from his computer pursuant to warrant and observed as follows:
Giberson's principal argument is that computers are able to store massive quantities of intangible, digitally stored information, distinguishing them from ordinary storage containers. But neither the quantity of information, nor the form in which it is stored, is legally relevant in the Fourth Amendment context. While it is true that computers can store a large amount of material, there is no reason why officers should be permitted to search a room full of filing cabinets or even a person's library for documents listed in a warrant but should not be able to search a computer. Giberson's purported exception would also create problems in analyzing devices with similar storage capacities. If we permit cassette tapes to be searched, then do we permit CDs, even though they hold more information? If we do not permit computers to be searched, what about a USB flash drive or other external storage device? Giberson's purported exception provides no answers to these questions.
Similarly, attempting to limit Fourth Amendment searches based on the format of stored information would be arbitrary. We have already held that microcassettes, which store data differently from traditional paper, are seizable in a search for records. See Gomez-Soto, 723 F.2d at 652. There is no reason why material stored digitally on a computer should not also be searchable. Once again, Giberson's purported exception generates more questions than answers: If we permit a person's Day-Timer to be searched, what about one's BlackBerry? The format of a record or document should not be dispositive to a Fourth Amendment inquiry.
Giberson's purported rule creates a brightline exception to the Fourth Amendment that provides no principles by which to evaluate whether a search is reasonable. The Supreme Court has consistently eschewed such brightline rules. See Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Here, the only principle upon which we can anchor this analysis is the one already articulated by this court: that to search a container, it must be reasonable to expect that the items enumerated in the search warrant could be found therein. If it is reasonable to believe that a computer contains items enumerated in the warrant, officers may search it.
Giberson offers two other bases upon which to distinguish computers from other objects in the Fourth Amendment context. First, he argues that computers have a great potential for the intermingling of relevant and irrelevant (and personal and private) material. Indeed, a court has recognized that [b]ecause computers can hold so much information touching on many different areas of a person's life, there is a greater potential for the intermingling of documents and a consequent invasion of privacy when police execute a search for evidence on a computer. United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001). However, we have already rejected this reasoning in Adjani, when we pointed out that
[t]he fear that agents searching a computer may come across ... personal information cannot alone serve as the basis for excluding evidence of criminal acts. [United States v. Adjani,] 452 F.3d  at 1152 n. 9 [(9th Cir.), cert. denied __U.S.__, 127 S.Ct. 568 (2006)]. While officers ought to exercise caution when executing the search of a computer, just as they ought to when sifting through documents that may contain personal information, the potential intermingling of materials does not justify an exception or heightened procedural protections for computers beyond the Fourth Amendment's reasonableness requirement.
Giberson also argues that the evidence obtained from the search of his computer should have been suppressed because the government did not sufficiently limit its search to relevant documents. The second warrant authorized the government to search Giberson's computer for records relating to I.D. cards or the creation of those cards, including driver's licenses, state identification cards, state seals, and photographs that could be used for fake I.D.s. Giberson argues that computer specialist Rehms should have limited his search to files likely to contain those documents, and vaguely asserts that Rehms could have done so by looking at the computer's directories instead of sorting files through ILOOK.
Giberson's argument is foreclosed by [United States v.] Hill[, 459 F.3d 966 (9th Cir. 2006)]. There, the defendant argued that a search of his computer files should have been limited to files likely to be associated with those identified in the search warrant. Hill, 459 F.3d at 977. We rejected that argument, reasoning that the defendant's methodology was unreasonable, because:
Computer records are extremely susceptible to tampering, hiding, or destruction, whether deliberate or inadvertent. Images can be hidden in all manner of files, even word processing documents and spreadsheets. Criminals will do all they can to conceal contraband, including the simple expedient of changing the ...