Magistrate Judges Emboldened By Snowden, Pushing Back On Overly Broad DOJ Requests

from the good-for-them dept

A couple weeks ago, we wrote about how the judiciary was finally pushing back on overly broad and vague warrant requests from the DOJ, with magistrate judge John Facciola leading the way. That was based on a Wall Street Journal article highlighting how magistrate judges like Facciola and David Waxse have been pushing back much more regularly on requests. The Washington Post has now written a very similar article (though, like most stuck up mainstream publications, it never mentions the WSJ article that beat it to the punch) that is worth reading as well. While it repeats much of the same story from the WSJ one, it also adds some interesting details. The basic story is basically the same. Facciola and others have been pushing back steadily on requests:

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

The article also notes that it’s very likely that the Ed Snowden revelations have played a big role in the sudden uptick in magistrate judges pushing back:

The seeds of what legal observers have dubbed “the Magistrates’ Revolt” date back several years, but it has gained power amid mounting public anger about government surveillance capabilities revealed by former National Security Agency contractor Edward Snowden. Judges have been especially sensitive to backlash over the Foreign Intelligence Surveillance Court, which made secret rulings key to the growth of the surveillance programs.

A lawyer quoted in the article notes that the judges are now realizing that if they approve a bogus warrant, which later becomes public, it may now become an embarrassment:

“There’s a newfound liberation to scrutinize more carefully,” said Albert Gidari Jr., a partner at Perkins Coie who represents technology and telecommunications companies. “They also don’t want to be the ones who approve an order that later becomes public and embarrassing. . . . Nobody likes to be characterized as a rubber stamp.”

Of course, the inference there is depressing, if unsurprising. Back when they could work in relative secrecy, judges were a lot more willing to just go along with law enforcement. We’ve been saying since the beginning that transparency, sunlight and accountability are important components in maintaining the Constitution, and this newfound backbone from the judiciary certainly seems to suggest that’s true. It also shows just how far-reaching the impact of Snowden’s actions have been. It’s not just about the NSA, but it’s priming the key folks who make the federal judiciary function, the magistrate judges, sit up and pay more attention.

The other tidbit of information, is that the magistrate judges apparently all have a mailing list where they discuss some of this stuff, suggesting that this growing “revolt” (if you can call actually following the Constitution a “revolt”) may continue to spread:

Magistrate judges, who do much of the routine work of the criminal justice system, influence each other through conversations at judicial conferences and through the federal e-mail system, which allows any magistrate judge to query all others on a vexing legal question with a single click of the mouse.

Perhaps even more interesting is that one of the magistrate judges handling these issues has even designed a joke t-shirt that he sends to any judges who have to rule on warrants concerning mobile phone information:

Tackling such issues, even in the face of possible reversal by higher courts, has become something of a badge of honor among some magistrates. Judge James Orenstein of Brooklyn, a former federal prosecutor who also wrote an early, influential ruling on cellphone location data, once joked with Smith that they would soon have enough like-minded magistrates to form a bowling team, Smith recalled.

That prompted Orenstein to design shirts featuring the image of a bowling ball rolling toward a cellphone and nine cell towers arranged in a triangle like a set of bowling pins. Above the image it read, “CSI: Cell Site Information.” Below it read, “Bowling for Dialers.”

When other magistrates write opinions on the issue — regardless of which side they take in the debate — they are offered one of the shirts.

While a bit more jokey than you’d normally expect from some judges, things like this certainly help remind the judges that these kinds of requests are important to pay attention to, and aren’t “just another” request to rubber stamp. That’s a good thing.

While the article notes that the government is starting to more aggressively appeal these magistrates (and some federal judges have been overturning them) it’s still good to see the magistrates stepping up and tackling this issue.

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Comments on “Magistrate Judges Emboldened By Snowden, Pushing Back On Overly Broad DOJ Requests”

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15 Comments
kenichi tanaka (profile) says:

Back as far as 2008, I had noticed the fact that everyone from the courts to congress had become the problem instead of the solution. From Cspan to the internet to 24 hours news coverage, our government is the one who is spied upon more often than the people they themselves spy upon.

Everything our government does is suspect and their demands that we trust them implicitly just belies the corruption that exists in government.

The government belies in the old cliche that if you tell someone a lie enough times that the person you’re telling the lie to will ultimately start believing in it.

Anonymous Coward says:

Re: Re:

I never understood how people follow the logic below…

I don’t trust my neighbor because I do not know who they are.

I trust my government and you should too, even though, I do not know who they are either.

If you trust your government, you deserve its oppression.

You can love it, you can like it, you can hate and despise it… but you can NEVER TRUST IT!

silverscarcat (profile) says:

Re: Re: Re:

Oh, I trust the government.

I trust that the government will take a tragedy and use it to do horrible things. I trust that the government will do all that it can to destroy people’s rights if given the opportunity. I trust that the government is bought out by big money. I trust that the elections are rigged to keep the status quo in place by buying out the media.

So, really, I do trust the government.

About as far as I can throw the Washington Monument.

kenichi tanaka (profile) says:

Maybe, but if you trust your government, even though they routinely violate your rights as granted by constitution and by law, then you deserve to be victimized, subjugated and violated by your government.

Laws need to be respected and followed by everyone, not just the people. If a law exists to which the people need to follow, then the government needs to do the same. The government cannot summarily force you to follow a law that which they decide not to follow themselves.

That is why governments routinely fall to rebellion. Government exists to serve the people, people do NOT serve government.

Anonymous Coward says:

Magistrate judge is basicaly judge-in-training in federal courts. Handles only day to day technical issues of the case, but is barred from issuing decisions on merits of it.

Thus, magistrate judge has no guaranteed lifetime pension equal to 100% pay and only after 14 years on the bench regardless of age. This pension is on top of social security which commoners get at 67 (to be 70 soon), and extra government employee full benefits.

No crook of sound mind will let such prize pass by.

gezzerx (profile) says:

Just more PR & propaganda, censorship, & coverup by the Government that will continue its smear campaign against Mr. Snowden by using the following tactics as quoted by Joseph Goebbels during the 1930’s & 1940’s.

?If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent,for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.? AND

?The most brilliant propagandist technique will yield no success unless one fundamental principle is borne in mind constantly – it must confine itself to a few points and repeat them over and over?

The US. & UK. Governments no longer have any credibility ! They make statements but never provide proof . Trust us, I think NOT ! Don’t trust but verify, & demand evidence of proof ! Until they do so, it’s just more lies, excuses, rationalizations, & justifications .

No more lies, excuses rationalizations,or justifications, the public needs to hold these officials to account to the fullest extent of the law under Title 18 sec. 241 & 242 So any future traitors will know there will be consequences to such behavior. I hope the United Kingdom has equivalent laws, but if not maybe it’s time to get some. Better late than never.

REMEMBER: POLITICIANS, BUREAUCRATS AND DIAPERS SHOULD BE
CHANGED OFTEN AND FOR THE SAME REASON.

He that is good for making excuses is seldom good for anything else.
Benjamin Franklin

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.
Thomas Jefferson

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.
James Madison

The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.
Patrick Henry

“We the People are the rightful masters of BOTH Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution”
Abraham Lincoln

America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.
Abraham Lincoln

As a reminder Hermann Goering said at the Nuremberg Trials .
“The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.”

NSA General Keith Alexander told lawmakers “that even if approved, the measure would not necessarily end warrant-less collection depending on judicial interpretation.”

Time to start removing the corporate Congress from office & defunding the NSA to force them to comply with the law & impose jail time for non compliance under USC Title 18 Sec. 241 & 242. (Google it !)

Stop with the trying to put the lipstick on a pig approach !

Disclaimer: Be advised it is possible, that this communication is being monitored by the National Security Agency or GCHQ. I neither condone or support any such policy, by any Government authority that does not comply, as stipulated by the 4th Amendment of the U.S. Constitution.

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