En Banc Court Endorses Storing Data Long-Term

MANHATTAN (CN) — In a setback of data-privacy advocates, the en banc Second Circuit agreed Friday that authorities did not commit an unreasonable seizure by sitting on computer data for 2 ½ years before an investigation.

Judge Denny Chin penned a furious dissent likening the case to the digital-age equivalent of the general warrants from Britain's throne that inspired the American Revolution.

"Over two hundred fifty years ago, agents of the King of England, with warrant in hand, entered the home of John Entick," Chin wrote in a 40-page dissent. "They rummaged through boxes and trunks, cabinets and bureaus. They were looking for evidence of known instances of seditious libel, but they took 'all the papers and books without exception.'"

The Fourth Amendment protections that guarded against the power of a king must be particularly guarded the information age, Chin continued.

"If anything, the protections of the Fourth Amendment are even more important in the context of modern technology, for the government has a far greater ability to intrude into a person's private affairs," his dissent states.

Chin penned the opinion in connection to the well-publicized Fourth Amendment battle of Connecticut accountant Stavros Ganias.

Army investigators had been probing the military contractor American Boiler and Industrial Property Management, a client of Ganias, in late 2003 when they made forensic copies of the files on three of Ganias' computers.

Army investigators never purged the files that were unresponsive to the warrant, storing the data instead on two sets of 19 DVDs.

It took roughly two years of further investigation for authorities to begin suspecting that Ganias had also cheated the tax man.

The IRS eventually obtained a warrant to search the data that Army investigators had gleaned 2½ years earlier, but which had not been covered under the prior warrant.

Facing two years in prison after a jury found that he ducked $160,000 in federal income taxes, Ganias lobbed a constitutional appeal that ultimately reversed his conviction.

Chin had been the author of that opinion, which the Second Circuit subsequently vacated in favor of en banc review.

The court's 10-3 ruling today snatches Ganias back from the edge of victory.

"We conclude that the government relied in good faith on the 2006 warrant, and that this reliance was objectively reasonable," the lead opinion states, signed by Judges Debra Ann Livingston and Gerard Lynch.

The 61-page page opinion dispatches with a comparison Gania's attorney made at oral arguments. Stanley Twardy Jr., a managing partner at Pitney Day, had asked if the government would have been allowed to seize office filing cabinets for as long as it had his client's hard drives.

"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 opinion states.

Judges Raymond Lohier and Rosemary Pooler used a separate concurring opinion to agree with the majority on narrower ground.

Ganias may seek certiorari from the U.S. Supreme Court, his attorney Twardy said.

The Department of Justice declined to comment on the ruling.

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