This Court is increasingly concerned about the government’s applications for search
warrants for electronic data. In essence, its applications ask for the entire universe of information
tied to a particular account, even if it has established probable cause only for certain information.
To ameliorate this problem and bring the warrants in line with the Fourth Amendment, this Court
has issued “Secondary Orders” to accompany search and seizure warrants for electronic records.
These “Secondary Orders” explicitly require that contents and records of electronic
communications that are not relevant to an investigation must be returned or destroyed and
cannot be kept by the government. See, e.g., In the Matter of the Search of Information
Associated with [Redacted] That is Stored at Premises Controlled by Yahoo! Inc., 13-MJ-728,
[#4] (D.D.C. Sept. 25, 2013) (sealed) (Facciola, M.J.) (“All contents and records that the United
States government determines are not within the scope of Attachment B (II)(A), (B), and (C)
shall be either returned to Yahoo!, Inc., or, if copies, destroyed.”). Without such an order, this
Court is concerned that the government will see no obstacle to simply keeping all of the data that
it collects, regardless of its relevance to the specific investigation for which it is sought. See In
the Matter of the Search of Information Associated with the Facebook Account Identified by the
Username Aaron.Alexis That Is Stored at Premises Controlled by Facebook, Inc., 13-MJ-742,
2013 WL 7856600, at *7 (D.D.C. Nov. 26, 2013) (Facciola, M.J.) (hereinafter “Facebook
Opinion”).
That, however, has not been the extent of the Court’s concerns. In the Court’s November
2013 Facebook Opinion involving the search of the Facebook account of Navy Yard shooter
Aaron Alexis, the Court raised serious concerns about the government’s use of the two-step
procedure under Rule 41 of the Federal Rules of Criminal Procedure. See Facebook Opinion,
2013 WL 7856600, at *6. (“Under that Rule, a warrant ‘may authorize the seizure of electronic
5