Judge John Facciola On Today's Law Enforcement: I'd Go Weeks Without Seeing A Warrant For Anything 'Tactile'

from the 'start-canvassing-the-neighborhood-for-unlocked-cellphones' dept

We lost one of the “good guys” when Magistrate Judge John Facciola retired late last year. Facciola was a leading figure in the small — but important — “Magistrates’ Revolt” that emerged in the wake of the Snowden leaks. Multiple times the government approached Facciola for a signature on overly-broad warrants seeking the entire contents of a phone or an email account, only to find the judge unwilling to help it pack for its fishing trip.

More than once, the government was forced to rewrite its requests, and on one memorable occasion, it went “judge shopping” in hopes of obtaining the signature Facciola wouldn’t give it, only to be rebuffed by the unamused judge on the opposite coast.

Zoe Tillman of the National Law Journal has a fascinating interview with the retired judge. Facciola was one of the few magistrates who actively attempted to understand the legal nuances inherent to today’s interconnected world. According to Facciola, magistrate judges who allow technological advances to pass them by aren’t doing the public any favors by not staying current. Law enforcement has moved on, and it’s tough to act as a check against overreach if you don’t understand the subject matter. The mental image of investigators dusting for fingerprints and tossing suspects’ residences is completely outdated. Investigative work now involves — almost exclusively — more ethereal methods.

When asked how his job had changed since he took his post in 1997, Facciola responded:

[I]n March 2012, my criminal month, at the end of the month I realized something: I had not issued a warrant or an order for anything that was tactile. Everything I issued was for some form of electronically stored information. Whether it was a Facebook account or cell site information.

You almost look forward to the day when a guy will just want to break a door down and go in and get cocaine. Those days are gone forever apparently.

This would explain law enforcement’s outspoken opposition to any form of electronic encryption. Today’s law enforcement agencies seemingly have little stomach for old-fashioned police work. Searching something “tactile,” like a suspect’s residence, is almost always an afterthought. These agencies would rather dig through every communication they can obtain before they even think about utilizing methods that have worked for years. (And default mode for today’s law enforcement has shifted the approach to physical searches as well. Increasingly, handling the “tactile” means going “tactical” with no-knock warrants, military rifles, full body armor, repurposed mine-resistant vehicles and a hell of a lot of guys shouting contradictory instructions/firing weapons in contradictory directions within moments of the “breach.”)

This nearly-exclusive focus on digital searches poses a problem for the magistrates charged with vetting warrants for Constitutionality, not the least of which are the outdated laws and guidelines governing searches of citizens’ communications and data. And this can’t be fixed by the courts themselves.

[T]he problem is not a judicial one, the problem is Congress has not looked at the Stored Communications Act since 1986. My gosh. 1986. […] If you look at the opinions about the Stored Communications Act, they are some of the most complicated opinions you will see because it’s a classic example of the square peg not fitting in the round hole… There [is] out there a lot of wonderful thinking about how the act could be amended to bring it kicking and screaming into the 21st century. But no movement by Congress. That’s deeply troubling.

Not that the judicial system hasn’t tried. It’s just that the conclusions are still unclear and mainly deal with warrantless searches. The Sixth Circuit Court ruled that email contents are covered by the Fourth Amendment, contrary to the claims of those who rely on the outdated SCA. The Supreme Court had a chance to weigh the SCA against the Fourth Amendment in 2010, but chose to carefully avoid the subject. So, if it’s to be fixed, it’s up to Congress, and there is only a very slim chance that it will be willing to alter a law so thoroughly exploited by law enforcement and intelligence agencies, even given the events of the past couple of years.

Particularization is what’s needed in the digital realm, according to Facciola, but that’s clearly not what the government wants. It wants to dump peoples’ computers and devices on the metaphorical carpet and root through the pile until it finds what it’s looking for. (Or, as has happened frequently, find something it wasn’t looking for and pursue that angle instead/in addition, occasionally necessitating additional warrants.)

Particularized searches of ethereal contents is easier said than done, especially when one half of the parties involved has no interest in limiting its searches. Facciola has suggested searches of this type be handled by the third party that holds the data, but that has been shot down by other judges as “impractical.” Facciola additionally suggests wholly separating the search team and the evidence review team (using a “Chinese wall”) to help assure the search won’t exceed the limitations provided by the warrant. The last resort is still the front line, however.

The third solution… is more careful supervision of the conduct of the search by the magistrate judge.

That’s where Facciola fit in. He challenged the government on its broad search requests and forced it to reconsider its tactics. Unfortunately, there’s usually been another judge willing to grant warrants that don’t meet the standards of more demanding magistrates.

In his parting comment, Facciola points out that judges aren’t the only technologically-resistant participants in the judicial system. Those on the other side of the bench have their issues as well.

We have to get across to lawyers that they really have to read outside of their fields. Every day I read the tech section of The New York Times. I find almost every article has to do with the law. And that’s an important thing.

I learned from [a law professor] that — did you know this? — the telephone was in existence for 10 years before lawyers started to use it. They thought it was beneath their dignity. You wondered, did they use the elevator?

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Comments on “Judge John Facciola On Today's Law Enforcement: I'd Go Weeks Without Seeing A Warrant For Anything 'Tactile'”

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Vel the Enigmatic says:

Glad to hear these words from the Magistrate Judge.

Cause now we know the real problem with the judicial system is that it’s being run largely by neo-technophobics, in addition to the all the bad apples in law enforcements orchard.

Gotta wonder how long they can pretend the issues don’t exist before reality decides to pay them a rather nasty visit..

John Fenderson (profile) says:

This reminds me of the problem with tasers

In concept, tasers should be a good thing: an almost-nonlethal weapon to use where a gun would otherwise have been employed. In practice, the less-than-lethal nature of tasers have increased abuse by police, since now they have a handy tool to torture people into compliance with a reduced risk of killing them or leaving them bloodied (and therefore a reduced risk of getting caught).

Easy access to our data seems like the same sort of deal. In concept, this should be a good thing: a database search is better than a SWAT raid. In practice, though, that very thing is leading to increased abuse by cops in the form of ubiquitous surveillance and searches that should be illegal.

That One Guy (profile) says:

Re: This reminds me of the problem with tasers

When the action is seen as more serious at it’s ‘base’ level, then there will generally be more attention paid to it to keep things in check.

When the action however is seen as less serious at it’s base level though, there will be less attention paid to it, as it’s not seen as nearly extreme, even if the inevitable abuses of it can, and often do, make it’s impact even worse than the ‘more serious’ option.

Padpaw (profile) says:

Re: This reminds me of the problem with tasers

I used to be for giving police the tools they need to handle the criminal element.

Then I saw the story about how police threw a grenade at a baby and blew a hole in its chest.

So instead of focusing on how police are using the tools they are given wrongly we should focus on why we are ignoring the criminal elements of the police.

50 years ago they would have been lined up and shot for what they are constantly doing this past decade.

We are debating about how we should stop giving them the ability to abuse us further instead of working towards getting rid of them

Anonymous Coward says:

Facciola has suggested searches of this type be handled by the third party that holds the data, but that has been shot down by other judges as “impractical.”

Of course it has. Because it would require effort and might block their otherwise unlimited access. Authority wants the benefits of having massive amounts of ephemeral data at its fingertips, without paying any sort of price.

Law enforcement wants the rewards, and any penalties can be paid with the slow erosion of the rights of the very people they claim to be protecting and serving. There’s that damn design pattern again.

Anonymous Coward says:

>Particularization is what’s needed in the digital realm, according to Facciola, but that’s clearly not what the government wants.

This sentence gets to the heart of the digital matter. Currently everything is seized via 3rd parties (section 215) or through fiber optic splitters on the internet backbone (secret rooms inside AT&T buildings).

Then either later or in real-time, all this warrantlessly seized information is searched. All without a warrant and also without listing the particular things to be seized. Seizing everything doesn’t count as a particularization. Yet that’s exactly what is currently happening in violation of the Fourth Amendment.

We’re living in a period of lawless chaos.

Padpaw (profile) says:

the new age police work is where you act like a criminal ,murder with impunity have zero oversight. You intimidate or brutalize anyone that knows their rights.

Classify anyone that does not instantly respect you as a threat that needs top be killed, classify protesters with terrorism, request machine guns to police peaceful rallies.

need I go on how these should not be considered police anymore but a crime syndicate.

That One Guy (profile) says:

Re: Re: Re:

You’re also generally much safer with a crime syndicate in the area than police.

As long as you don’t interfere with a crime syndicate, or threaten your profits, odds are they won’t bother with you, as it’s counterproductive and a waste of time and money. They’re in it for the money, personal whims generally take a backseat to that.

Police though… they get paid the same whether they have a boring day where nothing happens, or a ‘fun’ day when they get to beat someone black and blue for not groveling enough or ‘resisting arrest’. As such they have no real reason not to do so.

Ninja (profile) says:

It is amusing. I was watching the news these days (on a rare instance where I watch anything that’s not via the Internet) and they were covering a fairly big drug bust (yeah, waste of time and resources and bla bla bla but that’s not the point). When presenting the evidence computers were not mentioned even once and the phones were all incredibly old and low tech models. Does that ring any bells? If you want to fly completely off the radar you have to go as low tech as possible or full encryption. In the case from the mentioned coverage the US cops could have caught the conversations on the stingrays but really, simple spoken codes could render the stingrays useless.

And that, my friends, is law enforcement nowadays. Feeling any safer now?

Edward Teach says:

Re: Low to no tech

Avast, mate, you beat me to the punch! I wanted to observe that using low tech (actually just different tech) methods might allow a crew or two to make some tidy, tidy profits.

Traditionally, small children carrying messages was one way to do business. Perhaps we’ll see a resurgence of this. Maybe using kids to TXT whatever incomprehensible pagan argot to each other would allow a crime crew to spread its comms, yet keep from being noticed in a bad way by the NSA/FBI/DEA. If the “last mile” is by foot, and the middle miles are outside of the “calling circle”, maybe the info doesn’t get tapped.

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