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Surely there is a legal precedent which provides at least some framework for what can or cannot be seized during a warrant search? This can't be the first time government agents have mistakenly seized property in an otherwise lawful search.

Also, while I completely understand Instapaper's unwillingness to pursue this through the courts, that is the way our legal system is structured. If you believe you have been harmed in some way by a government action, the courts are the avenue through which you must obtain recourse.

(Not a lawyer, so if I'm wrong about any of the above please correct me.)




It's called the constitution of the United States. If the enforcers don't follow it, your only recourse is the Supreme Court which will probably throw out your claim for national security reasons.


Not necessarily. I (also) am not a lawyer, but the question isn't whether the FBI has the authority, constitutional or otherwise, to seize the servers owned by the target of the warrant, the question is whether they overstepped their bounds in seizing three whole racks of servers. If it's shown they were careless or did not take sufficient caution in their raid to avoid seizing unrelated servers, they could be held liable for damages. In this case in particular, the number of unrelated companies that have been affected by this (and the number of servers present in 3 racks) makes a case for negligence.

Again, though, the question isn't whether they had the right to seize the servers they had warrants for - they did, and you won't get that questioned by any court - but whether they did so properly, and it's not unheard of for a law enforcement agency to get slapped for overstepping their bounds. It's not Common, but it's not unheard of, and it's not a 4th amendment issue either.


It is a 4th amendment issue: That's why they can't just take the server of people not under investigation...


Right, but for the courts the question is, did they intend to violate the 4th or did they just screw up? Intent matters - in this case, whether they intended an unwarranted seizure of the server racks or if they just screwed up. Because they had a valid warrant to seize some servers from that data center, I think you'd have a really difficult time pressing the case that they Intended to violate the 4th amendment rights of the other people whose servers were on those racks. Negligence, on the other hand, is a much, much lower bar, much easier to prove in these circumstances, and should be adequate to secure damages - and frankly, I've got a lot easier time believing it was negligence in this case than an intentional violation of the other individuals' 4th amendment protections.


"Uh sorry, I didn't mean to do that."

"Oh, phew, carry on."

You're kidding me, right?


If I get in your car that's just laying there on the street and "borrow" it for a week without telling you anything, do you think the court will question whether I overstepped my bounds? Do you think I can avoid getting slapped?

After all, I do have the right to drive cars, including cars which I don't own.


What? No, seriously-- what?

How is this at all analogous to a warranted search? The FBI had permission to take something - so did they perform due diligence to make sure they took the correct something? That is the question.

So let's say I gave you permission to drive my car. It's green. You hop in a green car near my house, find the keys in the ignition and leave for four hours of errands. (Typically, I'd give you my key and you'd select a car that the key fits, but not today.) My neighbor reports his green car stolen and the police intercept you on your way back into the neighborhood. Did you perform "proper diligence" in selecting the correct car to take?

I have no idea how this situation would play out, but I suspect your own intent (to drive MY green car) plays into the considerations of the prosecuting attorney.


Nope, the correct analogy is that he took all the green cars in addition to all the blue and red cars.




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