Did the Founding Fathers Think the Fourth Amendment Would Protect our iPhones?

April 15, 2014

By: Sara Kropf

Our mobile devices increasingly hold the details of our lives. Our phones hold the names and contact information of our friends, family and colleagues. They maintain our calendars and plans. They track our internet activity and preferences, store passwords and even pinpoint our locations.

Not surprisingly, the government has learned to exploit our reliance on mobile devices. Take the example of Daniel Milzman, the Georgetown University student suspected of creating ricin in his dorm room. As Breaking Bad devotees already know, ricin is a highly toxic chemical that is lethal to humans even in small doses.

The government aggressively sought a search warrant for Mr. Milzman’s smartphone to build their case against him. But a magistrate judge in the District of Columbia said no, forcing the government to go back and try again. Here’s the Milzman order


According to the government, Mr. Milzman was inspired by Breaking Bad to produce ricin. If true, this would violate 18 U.S.C. § 175, which prohibits the production of biological weapons. The government seized Mr. Milzman’s iPhone pursuant to a warrant issued on March 18 and then sought permission to search the phone’s contents.

Unluckily for the government, the case was assigned to Magistrate Judge John Facciola of the U.S. District Court for the District of Columbia. In an order denying the application, Judge Facciola delved into the technical and legal aspects of these types of search warrants.

Judge Facciola acknowledged the potential intrusiveness of phone and computer searches. He demanded the prosecutors disclose their search protocol, in detail, to prove that their search would not be overbroad.

The Warrant Application

Seeking to cast the widest possible net, the prosecutors in Mr. Milzman’s case offered the judge a comprehensive list of the data they wanted to seize from Mr. Milzman’s phone, including:

  • Data concerning Mr. Milzman’s internet activity, including his browser history, bookmarked pages, the search terms he entered, and the web addresses he typed,
  • His phone’s call and operation records,
  • Records of Mr. Milzman’s address, his contact lists, and his passwords,
  • Any images related to production, storage, and dissemination of biological agents or toxins,
  • The phone’s stored GPS information,
  • Records of purchases related to toxins and biological agents,
  • Evidence of user attribution to show who used or owned the device, and
  • Any communication relating to production or possession of ricin.

The prosecutors followed this list with a description of the forensic analysis they would use. The prosecutors, along with an FBI tech team, would run a “computer-assisted search” on the phone’s data. That search would tell human investigators which blocks of data probably contained useful evidence, and would help them tailor their search.

Then, in a bid to give itself as much leeway as possible, the government described the process of identifying the right files as a “dynamic” one. The prosecutors went on to suggest that they may need “contextual information” to understand the data they seize and search.

Confused yet? Yeah, me too.

The government finished with a small, cursory passage about it would do with data outside the scope of the warrant, reproduced here in full:

Data outside the scope of the warrant. Any information discovered on the Device to be seized which falls outside of the scope of this warrant will be returned or, if copied, destroyed within a reasonably prompt amount of time after the information is identified.

Why the Application Was Denied

 Mr. Milzman’s case highlights two ways a digital-content search warrant can be legally problematic: (1) over-seizure and (2) lack of particularity.

Judge Facciola first criticized the government’s warrant application because he did not know exactly what the prosecutors would do with the seized data that fell outside the scope of the warrant.

The judge acknowledged that it was impossible to imagine how the government would perform their search without creating a replica of the iPhone’s entire data set. If the government did seize all the data on Mr. Milzman’s phone, it would need to adequately explain how to deal with all the excess information.

The court was unwilling to grant the warrant with only the government’s indefinite, cursory assurance that it would destroy or return impertinent information “within a reasonably prompt amount of time.”

The court also found problems with the government’s assurance of particularity – or lack thereof.

The Fourth Amendment’s particularity requirement forces the government to narrowly tailor its warrants, prohibiting “investigatory dragnets.” Judge Facciola concluded that the government did not clear this hurdle.

Though the prosecutors made vague reference to the “computer-assisted search” they would perform, they did not adequately explain the criteria for determining which blocks of data would later merit human inspection.

The opinion conceded that it is not possible to determine ahead of time which blocks, if any, would contain evidence against Mr. Milzman. Nevertheless, it would be enough for the government to simply describe to the Court how it will determine which blocks would be searched.

In no uncertain terms, Judge Facciola informed the government that merely saying they will run a computer assisted scan “tells the Court nothing about what will actually happen and does not provide a means of searching so that this Court is assured that it is the type of particularized search that the Fourth Amendment demands.”

Finally, a Real Limit?

It is too soon to know whether other courts will follow the reasoning in Judge Facciola’s decision to deny other digital search warrant applications. But it is a nice change of pace to see a court resisting the efforts of the government to search every nook and cranny of a defendant’s electronic device for evidence, no matter how much personal—and irrelevant—data may be included on it.

In the end, the government will almost certainly develop a search protocol that will satisfy the judge in this case. Hopefully, though, that protocol will include some protections for Mr. Milzman and preserve the Fourth Amendment’s supposed protection. Too bad it’s such a rapidly shrinking protection in this digital world.

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