DECISION AND ORDER ON MOTION TO SUPPRESS

D. BROCK HORNBY, District Judge.

The indictment charges the defendant with failure to pay child support, in violation of 18 U.S.C. § 228(a)(3). After indictment, the government obtained a search warrant for an e-mail account registered to the defendant. The defendant has filed a motion to suppress all the seized e-mails and related information on the following grounds: (1) the government failed to take adequate precautions to exclude privileged communications, (2) attorney-client information has in fact been disclosed to the government, (3) the search warrant was overly broad and insufficiently particularized, and (4) e-mails that qualified as "arguably privileged" were not isolated in the review process. The motion to suppress is DENIED.

FACTS

It is undisputed that, before indictment, lawyers were appointed for the defendant in both Idaho, where he lives, and Maine, where he has been indicted, and that the government knew of their appointment. After indictment, a magistrate judge of this court issued a warrant that authorized a search of all information associated with an identified Microsoft hotmail account of the defendant, and the seizure of all information "that constitutes fruits, evidence and instrumentalities of violations of 18 U.S.C. § 228" including "[r]ecords relating to business and/or other financial and accounting matters, as well as all records relating to the purchasing and selling of goods and services."1

In response to the warrant, Microsoft provided a "zip drive" containing messages from the e-mail address.2 When a government agent began searching the e-mails, he first began viewing only the header information, which revealed the sender, receiver, date, and subject.3 In this initial review of header information, the agent saw that there was e-mail correspondence to or from the defendant's lawyer(s).4 At that point he stopped his review and contacted the prosecuting AUSA.5

The government then filed a Motion for Approval of Government's Search Procedure to Protect Privileged Materials, proposing a "filter agent" procedure whereby an AUSA uninvolved with the prosecution would review the e-mail materials to cull out any potentially privileged materials before the investigating agent and the prosecuting AUSA received them.6 Over the defendant's objection7 and after making modifications for the defendant's benefit, the magistrate judge entered an order permitting the filter agent procedure.8 The order identified three categories of materials: privileged, arguably privileged, and unprivileged.

Next, the filter agent reviewed the materials using the procedures prescribed in the court's order and removed eleven privileged e-mails. These privileged materials were provided to counsel for the defendant, not to the prosecuting AUSA or the investigating agent.9 The filter agent also determined that there was nothing within the category of "arguably privileged" material, and so informed the defendant's lawyer.10 The remaining, unprivileged, materials were provided to the investigating agent and the prosecuting attorney in the case.11

ANALYSIS

A. Failure to Take Adequate Precautions to Exclude Privileged Communications

The defendant argues that he is entitled to suppression of all the seized evidence because "the government seized privileged and confidential communications as a result of the failure to take adequate protective measures in the drafting of the warrant and in its execution."12 His argument is that the filter agent approach "is per se inadequate as a matter of law," that knowing he already had a lawyer the government should have realized in advance that its search warrant would produce privileged communications and have taken preventive steps accordingly, and that these failures call for suppression of all the material seized.13

The parties have not referred me to any First Circuit decision dealing with the use of a filter agent. Case law from the rest of the country does not yield clear answers,14 but some themes emerge. A number of cases have permitted its use.15 At the same time, there is a healthy skepticism about the reliability of a filter agent or Chinese or ethical wall within a prosecutor's office,16 a skepticism perhaps prompted by the famous failures of such a procedure in United States v. Noriega, 764 F.Supp. 1480 (S.D.Fla.1991).17 Courts exhibit particular concern over use of filter agents or taint teams in searches of lawyers' offices, where privileged materials of many clients could be compromised.18 There, judges have sometimes required alternatives such as appointment of a special master, a wholly independent third party.19 Courts seem to recognize a distinction between circumstances where the government has not yet obtained the records on the one hand (allowing defense counsel's preliminary review),20 and, on the other hand, what the government should do when it has already seized the records, then realizes that it may have privileged materials (allowing use of filter agent there).21 Finally, some of the cases and some of the commentators suggest a role for judicial review.

In the circumstances of this search and this e-mail account, I have no reason to find that it was inherently negligent for the government to fail to foresee that its seizure of the defendant's e-mails would produce privileged documents simply because he had a lawyer, and I do not conclude that every warrant for an e-mail search must have at the outset a built-in privilege protection procedure, any more than there is such a requirement for every paper document search.22 Instead, I conclude that the government behaved reasonably here by immediately seeking judicial instructions once its agent noticed that e-mail headers reflected communications between lawyer and client. It is true that some cases could be read to suggest that at that point the defendant and his lawyer should have been allowed a first look at the e-mails, so as to create a privilege log and then let the government challenge it in court, rather than vice versa as here. But the defendant did not propose that procedure to the magistrate judge, and instead simply opposed the government's proposal in toto. The government sought judicial instructions, the magistrate judge modified its proposal, and then issued an order on how to proceed. I reject the argument that somehow that was per se an inappropriate way of proceeding.

Moreover, if something was seized improperly, the remedy is suppression of that item and perhaps its fruit,23 not suppression of everything: "The remedy in the case of a seizure that casts its net too broadly is . . . not blanket suppression but partial suppression."24 Here, there is nothing to suppress. After becoming aware of the existence of potentially privileged e-mails, the government took the appropriate steps to remove those e-mails from the materials the prosecuting attorney and case agent could obtain, and thus they cannot be used at trial.

Finally, there is no suggestion that the government has failed to comply with the procedures prescribed by the magistrate judge. During the initial review, the agent examined only the header information and not the content of the e-mail.25 Thereafter, the government used the filter agent procedure approved by the magistrate judge. That agent removed the privileged e-mails and they were not disclosed to the prosecuting attorney or the case agent. Those assertions have not been contested, nor has the defendant requested an evidentiary hearing concerning them.26

B. Whether Attorney-Client Information was Disclosed to the Government

The defendant asserts that because eleven e-mails were determined to be privileged, the record confirms the disclosure of attorney-client communications to the government's filter agent. Disclosure of privileged communications to any government agent, even if that individual is not involved with prosecuting the case, the defendant contends, violates the privilege and requires suppression of everything seized.

The record does not support the defendant's assertion that attorney-client information was disclosed to the filter agent or any other government representative. The magistrate judge's order states that the filter agent "will use the `header' information on the e-mails to filter out any e-mails purporting to be either to or from the defendant's current attorney, J. Hilary Billings, Esq., or his previous attorney, Dennis Charney, Esq., without reviewing the content of those e-mails. S/he will review the content of the remaining e-mails to ensure that no privileged information may be contained within them. S/he shall maintain a log detailing the disposition of each document in question."27 There is no suggestion that the filter agent failed to follow these procedures (the government asserts the contrary28 and the defendant has not requested an evidentiary hearing). Thus, as the record stands, not even the filter agent read any privileged communications.

C. Overbreath and Insufficient Particularity

The defendant contends that the government made no effort to limit the scope of the warrant so as to seek only "those communications likely to produce the evidence of `financial means.'"29 The search for evidence of financial means, the defendant asserts, should have been limited to "the e-commerce sites that were [listed in the affidavit as being] linked to the e-mail address of the defendant." Id.

In cases involving a violation of 18 U.S.C. § 228(a)(3), however, the inquiry is broad: the defendant's income and financial means are relevant, as well as the defendant's voluntary failure to maintain employment.30 Here, the search warrant permitted the government to search the e-mail account and seize "records relating to business and/or other financial and accounting matters, as well as all records relating to the purchasing and selling of goods and services."31 This scope reasonably limits the evidence to be seized. But the defendant contends that the warrant was insufficiently particularized because it permitted personal communications to be searched in order to seize this evidence. The defendant would prefer that the scope of the search had been limited to e-mails linked to specific internet e-commerce websites that he used or, in some fashion, have other limiting terms to limits its scope to communications that would produce evidence of financial means (he does not identify what those limiting terms should have been).

While there may be a degree of uncertainty as to the precise "applicability of the Fourth Amendment's particularity requirement with respect to searches of computer data,"32 the warrant in this case was not overly broad in allowing search of this e-mail account. The agent's affidavit extensively documented the repeated use of this e-mail account in connection with various business enterprises, evidentiary support for a violation of the statute for failure to pay child support.

The Fourth Amendment does not require the government to delegate a prescreening function to the internet service provider or to ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching.33 The Supreme Court has noted that, even "[i]n searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized."34 The First Circuit has said that "the police may look through . . . file cabinets, files and similar items and briefly peruse their contents to determine whether they are among the documentary items to be seized."35 The same is true for the search of an e-mail account, and the search does not fail to satisfy the particularity requirement simply because the warrant does not specify a more precise e-mail search method.

D. "Arguably Privileged" E-mail

Finally, the defendant claims that the filter process did not work. As evidence, the defendant claims that "there appear to be several e-mails that contain privileged materials" that the filter agent failed to isolate as "arguably privileged."36 Specifically, the defendant identifies six "arguably privileged" e-mails sent to law school professors at The McGeorge School of Law at the University of the Pacific. The e-mails appear on a copy of the e-mail account log and identify the recipients by the initial of their first names and their last names all sent to the domain "pacific.edu", and indicate in the header notes that the defendant is seeking help with child support issues.37

But the defendant does not assert that he ever established an attorney-client relationship with any of these law school professors that would support excluding these communications as actually privileged. I conclude, therefore, that if the filter agent made any error here, it was harmless. Identifying such e-mails as "arguably privileged" would be simply an intermediate step in determining whether they are actually privileged. Otherwise, they are not subject to protection.

CONCLUSION

Accordingly, I conclude that the defendant has no basis for excluding the seized evidence beyond the privileged e-mails, and they have not been provided to the investigating agent or the prosecuting AUSA. The defendant's motion to suppress is therefore Denied.

So Ordered.