As we've been covering for the past few months, there seems to be an emboldened set
of magistrate judges willing to push back against
broad electronic search requests by the government. While it would be nice to see a stronger pushback originate somewhere closer to the top, it is (or was, it seems...) refreshing to see those on the lower rungs defend citizens' rights by rejecting what can only be termed "general warrants," the very thing
that prompted the Fourth Amendment in the first place.
But it appears the rest of the judicial system is more interested in quelling what Scott Greenfield has memorably termed the "Magistrates' Revolt."
As was noted here back in May
, a DC district court judge overrode DC Magistrate John Facciola's refusal to bury a subpoena to Twitter under a gag order (Facciola actually went one step further and invited Twitter to respond in court). Judge Richard Roberts allowed the burial, utilizing a lot of "government knows best" rationale, even while pointing out the government was using the wrong venue to attempt an appeal of a magistrate's decision.
Another Facciola refusal, one that had twice crossed his desk
has now been overridden as well. This warrant application -- seeking the entire contents of a person's .mac email account -- was summarized (twice) by Facciola as being "overly broad" for making no attempt to balance law enforcement interests with the expectation of privacy inherent to electronic communications.
The DOJ again appealed this decision and got the same judge -- Richard Roberts -- it got last time. And in spite of his earlier admonishment that the district court does not act as the appellate level for magistrate court decisions (a "mistake" the DOJ has made twice -- involving the same two judges
and pointed out in the decision with the exact same footnote
), Roberts again found that the government should generally be deferred to because it "knows best."
With very little preamble, Roberts announces that rules were followed and everything is on the level, but in the next 20 pages raises very few questions about the application of these rules to this specific situation, much less the digital reality of everyday life.
Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.
Just simply saying something "complies with the Fourth Amendment" doesn't magically make it so. Judge Facciola saw the same warrant application (twice) and came to a completely opposite conclusion. There's probably some middle ground that allows the DOJ to pursue this, but it's highly unlikely that Roberts (and the DOJ) are 100% right and Facciola is 100% wrong when it comes to the Fourth Amendment.
But Roberts is more of a business-as-usual judge. And business had gone on pretty much uninterrupted until recent months. When laying out the background of the case, Roberts nods to the Stored Communications Act, a particularly bad law that combines the worst parts of the Third Party Doctrine
with being nearly out-of-date by the time it was codified in 1986
As Roberts notes, the government did scale back its request after its first rejection, but only from "all email ever" to "all email from Jan. 14, 2014 going forward." While the government listed more specifics about its search and minimization efforts, Facciola still felt the DOJ was asking for more than it needed to achieve its aims.
While Facciola argued that the old way (grab everything
and dig through it later) just doesn't mesh with the reality of the situation in terms of upholding the Fourth Amendment, Judge Roberts finds no issues with the government using warrants to engage in fishing expeditions.
Several courts have found the two-step procedure to be reasonable under the Fourth Amendment, provided that there is a valid warrant supported by probable cause. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (upholding government’s seizure of electronic data for a subsequent offsite search where there was a fair probability that evidence would be found on the defendant’s personal computer and other electronic devices); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a ‘sufficient chance of finding some needles in the computer haystack.’” (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999))).
And who does Roberts rely on to ensure that not too "haystack" is idly thumbed through during the search for "needles?" The government itself, the most trustworthy of the participants, at least in this judge's eyes. Roberts says the judicial system plays an important part in weighing the balance between the government's desires and personal privacy, but then states that if anything gets abused, it can always be fixed after
the damage is done.
As the government argues in its challenge, law enforcement officers are provided with considerable discretion in determining how to execute a particular search warrant. The Supreme Court has explained that a search warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[.]” Dalia, 441 U.S. at 257.
That said, although law enforcement officers are afforded wide discretion in executing search warrants, “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978). Accordingly, the government will be afforded deference in deciding how to execute the search warrant, subject to later review by a court to determine whether the search complied with the Fourth Amendment’s reasonableness requirement.
So, everything's fine. The government can be trusted to only look at the stuff it's supposed to (even though it has access to plenty it doesn't need), and if it proves unworthy of that trust, the person whose rights have been violated can sleep well knowing a "later review" by the court will ensure no such abuse happens ever again. Until the next time.