Judicial Branch Finally Acting As A Check Against Government Overreach

Legal Issues

from the the-government's-been-skating-for-far-too-long dept

At long last, there finally seems to be a recognition by members of the judicial branch that they are, in fact, there to provide checks and balances against government overreach. We’ve already covered the recent orders by Magistrate Judge John Facciola, who has twice sent the government back to fix its overly broad warrant requests seeking access to email accounts and cell phone content. (This is tempered somewhat by another Facciola decision, which declared the law enforcement agency in question didn’t need a search warrant for a supposedly “abandoned” phone.) Facciola isn’t the only judge pushing back against the government’s vague warrant requests, however.

In the past year, U.S. magistrate judges John Facciola in Washington, D.C., and David Waxse in Kansas City, Kan., have rejected or modified a number of applications for warrants to search people’s emails and other electronic communications at Internet firms such as Google Inc. and Yahoo Inc.

The rulings go against the grain of a federal judiciary that has generally approved them, according to current and former law-enforcement officials. They also come against the backdrop of a legal and political debate over the scope of government surveillance that has raged since the National Security Agency’s bulk collection of phone records was revealed last summer.

At issue is the Justice Department’s two-step process of obtaining all emails and other electronic information in the accounts of a person under investigation, and then using names and keywords to sift through it in hopes of finding evidence of wrongdoing.

The judges have ruled the government needs to refine its requests to comply with the Fourth Amendment, which protects against unreasonable searches.

This has been the government’s process for years: obtain everything and keep whatever is deemed “relevant” to the case. Both of these judges appear to realize that they are the last line of Fourth Amendment defense between the government and the public. Presumably, the Snowden leaks have played a part in this altered mindset. As both judges have pointed out in their orders, what the government has routinely sought is unbounded access to communications via unconstitutional warrants.

These two have suggested an alternate route, if the government can’t manage to operate within the constraints of the Constitution.

Both judges have suggested Internet service providers and other Web firms could do their own searches based on specific guidance from the Justice Department, and turn over only the information that appears relevant to an investigation. They have also proposed systems in which a court-appointed official or others could perform the initial search, providing a buffer between investigators and bulk data.

Of course, the government thinks these are terrible ideas.

“I don’t think ISPs or email providers have the institutional competence to conduct the searches of their customers for evidence of crimes,” said Neil MacBride, a former U.S. attorney in Virginia who described the magistrate judges’ rulings as “outliers.”

Maybe. Maybe not. But it’s clear the government is no better than the private sector at performing targeted searches. Instead, it simply demands everything and expects to be trusted to only take a look at what is pertinent. Despite the fact that the government routinely asks (or rather, expects) the judicial branch, along with those defending the accused, to simply trust it with petabytes of someone’s personal data, it seems completely unwilling to trust a private company with fulfilling searches for relevant data on its behalf.

The days of the government simply saying “it’s complicated” and running broad warrant requests past technically-incompetent judges might finally be numbered.

Judge Waxse said he believed more people would come around to his view if they better understood recent technological advances and how service providers operate. “What Facciola and I are saying is, use what is now developed, and you can comply with the Fourth Amendment,” he said. “There are too many lawyers and judges who don’t have a clear grasp of how it all works.”

This is also part of the problem. Far too often, technically-ignorant judges have credulously accepted the government’s arguments because they don’t have the knowledge to challenge these assertions. They could seek the input of those who can parse the technological demands, but rather than do so, this crucial part of the system of checks and balances has simply allowed the government to portray its circumvention of the Fourth Amendment as unavoidable.

Following the revelations of the last several months, including documents showing the NSA misrepresented its bulk records collections for nearly three years straight, the government has been shown it cannot be trusted with unlimited access to people’s data and content. Hopefully, this pushback from the judicial branch will become the new standard.

Filed Under: 4th amendment, courts, david waxse, doj, john facciola, overreach, surveillance, warrants