United States v. Ganias

Concerning Whether Courts Have Jurisdiction to Review Cases Brought Based on Violations of Federal Statutory Rights

Introduction

The key issue in United States v. Ganias is whether the government may retain and search copies of electronic files, given that the files were not covered by the warrant under which they were seized. Due to the volume and complexity of digital data, courts have often recognized the need to over-seize electronic data and later review for relevant information off-site. However, the Fourth Amendment’s guarantee against unreasonable search and seizures places into question the subsequent retention and searches of information not covered by the original warrant.

The Second Circuit ruled that the government violated Stavros Ganias’s Fourth Amendment rights when it seized his personal computer records and retained them for more than two-and-a-half years. The government may not “possess indefinitely” Ganias’s records that were beyond the scope of the original warrant while it looked for other evidence to give it reason to search the files again.

The Second Circuit decided to rehear this case en banc, with oral argument to be held on September 30, 2015.

Questions Presented

1. Whether the Fourth Amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard drives for some two-and-a-half years, and then searched the non-responsive files pursuant to a subsequently issued warrant.

2. Considering all relevant factors, whether the government agents in this case acted reasonably and in good faith such that the files obtained from the cloned hard drives should not be suppressed.

Background

Stavros Ganias owned an accounting practice in Connecticut. In 2003, the Army obtained a warrant to search Ganias’s offices for evidence of fraud. During its search, the Army made “identical copies, or forensic mirror images, of the hard drives of all three of Ganias’s computers.”  Thirteen months later, the government finished reviewing the relevant materials but continued to keep files not covered by the Army warrant. Almost two-and-a-half years later, in 2006, the government obtained another warrant to search the stored files as part of a new IRS tax evasion investigation.

Using this evidence, the government prosecuted Ganias in the District Court for the District of Connecticut. A jury convicted Ganias of tax evasion. Ganias appealed in the Second Circuit, which vacated his conviction. The Second Circuit held that, under the Fourth Amendment, the government may not indefinitely possess records beyond the scope of the Army warrant while looking for other evidence to give it reason to search the files again. On June 29, 2015, the Second Circuit decided to rehear the appeal en banc. Oral argument will be heard on September 30, 2015.

EPIC’s Interest

EPIC has long advocated for application of the “interception” standard to email, and filed a 2004 amicus brief on this issue in U.S. v. Councilman.

EPIC also supports the framework established by the Ninth Circuit in Comprehensive Drug Testing to address the scope of electronic data searches—including the obligations of minimizing and deleting non-pertinent data after the search is conducted. EPIC recently addressed the CDT framework in its brief in Quon v. City of Ontario, CA.

More recently, EPIC filed a brief in Riley v. California, advocating for greater Fourth Amendment protections for digital data. And the Supreme Court in a unanimous opinion agreed, finding that the traditional rule governing the seizure of physical items incident to a lawful arrest does not authorize a search of the digital contents of a seized cell phone.

Legal Documents

United States Court of Appeals for the Second Circuit, No. 12-240-cr.

• En Banc Opinion (May 27, 2016)
• Judge Lohier, Concurring Opinion (May 27, 2016)
• Judge Chin, Dissenting Opinion (May 27, 2016)
• Order Granting Hearing En Banc, United States v. Ganias, No. 12-240-CR, 2015 WL 3939426 (2d Cir. June 29, 2015).
  • United States of America Petition for Rehearing En Banc
  • Amicus Curiae Briefs in Support of Appellant Ganias
    • Brief of Electronic Privacy Information Center
    • Brief of the Center for Constitutional Rights, Inc.
    • Brief of the Center for Democracy and Technology, American Civil Liberties Union, American Civil Liberties Union of Connecticut, Brennan Center for Justice at New York University School of Law, Electronic Frontier Foundation and New America Open Technology Institute
    • Brief of the Federal Defenders of New York, Inc.
    • Brief of Google Inc.
    • Brief of the New York Council of Defense Lawyers
    • Brief of the National Association of Criminal Defense Lawyers
    • Brief of Restore the Fourth
• United States v. Ganias, 755 F.3d 125 (2d Cir. 2014).
  • Reply Brief of Defendant-Appellant Stavros M. Ganias, United States v. Ganias, No. 3:08CR00224 AWT, (D. Conn. June 24, 2011), 2012 WL 5893998.
  • Brief for the United States of America, United States v. Ganias, No. 3:08CR00224 AWT, (D. Conn. June 24, 2011), 2012 WL 5462776.
  • Brief of Defendant-Appellant Stavros M. Ganias, United States v. Ganias, No. 3:08CR00224 AWT, (D. Conn. June 24, 2011), 2012 WL 3144068.

United States District Court for the District of Connecticut, No. 08-cr-224

• Ruling on Motions for New Trial & for Reconsideration, United States v. Ganias, No. 08-224, 2011 WL 4738684 (D. Conn. Oct. 5, 2011).
• United States v. Ganias, No. 08-224, 2011 WL 3563104 (D. Conn. Aug. 12, 2011).
• Ruling on Motion to Suppress Evidence, United States v. Ganias, No. 08-224, 2011 WL 2532396 (D. Conn. June 24, 2011).

Relevant Publications

• Alan Butler, Get A Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California, 10 Duke J. of Const. L. & Pub. Pol’y 45 (2015)
• Privacy In The Modern Age: The Search For Solutions (2015)
• Bruce Schneier, Data And Goliath (2014)
• Blake Anthony Klinkner, Digital Evidence and the Fourth Amendment: United States v. Ganias and Judicial Recognition of the ‘Right to Deletion’, The Wyo. Law. 52 (2015)
• Harvard Law Review, Second Circuit Creates A Potential “Right to Deletion” of Imaged Hard Drives., 128 Harv. L. Rev. 743 (2014)
• Ian M. Comisky, Matthew D. Lee, and Bridget Mayer, Second Circuit Finds Fourth Amendment Violation in Law Enforcement Retention of Computer Files Not Within Scope of Search Warrant, Tax Controversy Watch (2014)
• United States v. Ganias, Day Pitney LLP (2014)
• Barry A. Bohrer and Michael L. Yaeger, 2nd Circuit Limits Government Searches of Electronic Records, 20 Westlaw J. 10 (2014)

News

• Andrew Crocker, Appeals Court Avoids Hard Questions About the “Collect It All” Approach to Computer Searches, EFF (Jun. 3, 2016)
• Bernie Pazanowski, Copied Hard Drive Retention Ruling Deleted by Full 2d Cir., Bloomberg BNA (Jun. 2, 2016)
• Michael Knapp, Oral Argument Recap: United States v. Ganias, Lawfare (Oct. 1, 2016)
• Michael Knapp, Backgrounder on Second Circuit En Banc Rehearing on Data Retention, Lawfare (Sep. 29, 2015)
• Lance Duroni, 2nd Circ. To Rehear Appeal On Data Seizure In Tax Case, Law360 (June 29, 2015)