Last week I made a claim in passing and moved on: you cannot return a copy. You can only delete it, and deletion is a choice someone has to be affirmatively required to make. In December 2025, a federal judge in Washington required it — and in doing so answered a question the courts have been dodging for a decade.
Here are the facts, stripped to what matters. Daniel Richman is a law professor and a longtime confidant of former FBI Director James Comey. Between 2017 and 2020, in the course of investigating suspected improper disclosures by Comey, the government copied Richman’s data: it imaged his personal computer in 2017 — with his consent — and later pulled files from his Columbia email and iCloud accounts. The investigation ran its course. The related prosecution ended. And then, in September 2025, years later, the government went back into those old copies and searched them again — without a new warrant — as part of a renewed effort against Comey. Richman filed a motion under Rule 41(g) of the Federal Rules of Criminal Procedure, the mechanism for getting your property back from the government, and asked the court to make them return everything they had copied.
Judge Colleen Kollar-Kotelly granted it here and here. And the reasoning is a clinic in everything this blog is about. I also recommend reading Orin Kerr’s take on the matter here.
Start with the theory of the violation, because it’s subtle and it’s the important part. The court did not say the original collection was unlawful — Richman had consented to the imaging, and the later warrants were valid. It said the seizure became unreasonable over time. A seizure that is lawful the day it happens can ripen into a Fourth Amendment violation through the manner and length of the government’s continued possession. Retention before 2025 was tolerable, the court reasoned, so long as the data just sat there unaccessed. What flipped it was the government reaching back into the copies in 2025 and searching them again, for a new purpose, without going back to a judge. At that moment the years-long hold stopped being passive storage and became an unreasonable search and seizure.
Sit with how different that is from the way we usually talk about the Fourth Amendment. We treat “search” and “seizure” as things that happen at a moment — the knock, the grab, the warrant executed on a Tuesday. Richman treats the retained copy as an ongoing seizure, a continuing state that has to stay reasonable for as long as it lasts. That is the retention clock this blog has been arguing for, showing up in a real courtroom.
Then there’s the second holding, which is the one that should worry every forensic examiner in the country. The court found that when the government executed the 2019 and 2020 warrants, it never segregated the responsive material from everything else — it just kept the whole image. And because it failed to segregate, it could not now point to those warrants to justify holding onto any of it. Remember the responsive/non-responsive distinction from Week 1, the one I insisted had to be a defined term? Here it is, deciding the case. The government’s failure to separate what the warrant covered from what it didn’t cost it the right to keep the entire copy.
And then the remedy, which is genuinely novel and which is why I’m writing about this case at all. What do you do about a copy? Richman still had his computer; he wasn’t dispossessed of anything in the ordinary sense. The “property” the government held was a duplicate. Rule 41(g) says return the property — but you can’t hand a copy back, because handing it back leaves the government holding its own copy of the copy. So the court did the only thing that actually remedies a wrongful copy: it ordered the government to return or destroy all of it — the 2017 image, the email and iCloud files, every derivative — and allowed exactly one sealed copy to be deposited with a court (the Eastern District of Virginia), not with the Justice Department, reachable again only if the government first goes and gets a warrant. Delete everything; escrow one sealed copy with a neutral custodian; require a fresh warrant for any future access. That is a disposition rule, invented on the spot by a judge because no statute supplied one.
Now the part I owe you, which is why this matters beyond one professor and one politically radioactive investigation. Compare Richman to United States v. Ganias, the case it most resembles. In Ganias, the government also imaged more than a warrant covered, also held the non-responsive remainder for years, and also came back later to search it for a new crime. The Second Circuit, sitting en banc in 2016, had the chance to decide whether that retention violated the Fourth Amendment — and pointedly declined, resolving the case on the good-faith exception instead and leaving the hard question open. For ten years that question has sat unanswered. Richman is a single district judge answering it: yes, indefinite retention plus a warrantless later search is an unreasonable seizure, and yes, the remedy is to make the government give the copies back.
As this once was my job, let me argue for the government. I spent years working on this issue arguing for maximal, but reasonable, retention of as much digital evidence as possible. I lived those arguments knowing the defense bar’s arguments against. Now I get to argue for the defense.
The government’s objections aren’t frivolous and one of them proves my larger point. Rule 41(g) was written to allow courts a remedy when a seized item is an improper taking of personal property or the government’s continued possession is unduly burdensome. First: return-of-property is a strange fit for a copy, since Richman lost nothing he possessed, and stretching Rule 41(g) to cover duplicates arguably invents a remedy the rule doesn’t contain. Second: forcing deletion can destroy evidence that later turns out to matter, and the government has its own independent legal obligations to preserve certain records — obligations that can flatly contradict an order to hit delete. Third: this all arose inside a contested, high-profile prosecution, and the government argued the whole motion was really a collateral attack on that case dressed up as a property dispute.
The first objection is the tell. The reason Rule 41(g) fits awkwardly is that our entire Fourth Amendment vocabulary was built for tangible things you can be dispossessed of, and a copy dispossesses you of nothing while still invading you completely. That mismatch is not a reason the court got it wrong; it’s the reason we need a statute. A judge in 2025 had to stretch an old rule about returning seized objects to reach retained copies, because the law gives her nothing better to work with. And the second objection — evidence-preservation duties colliding with a deletion order — isn’t a defense so much as a preview: that collision is the disposition problem, and the Richman court had to referee it by hand, carving out one sealed escrow copy to reconcile the competing demands. A statute could resolve all of this in advance, generally, instead of leaving it to whichever judge a citizen happens to draw and whatever equitable powers that judge is willing to stretch.
That’s the lesson worth keeping, and it connects Thursday back to Tuesday. The government kept and re-searched Richman’s copies for one simple structural reason: nothing set the default to no. There was no retention clock, no rule requiring segregation to survive, no disposition duty, no second-warrant requirement written down in advance. One judge supplied all four by force of equity in a single, contestable order. The point of the statute I’m drafting is that none of that should depend on a judge’s improvisation. Get the default right, and “give the copies back” isn’t an extraordinary remedy a professor with good lawyers can win. It’s just what the government has to do when the case is over.
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