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 The mental image of investigators dusting for fingerprints and tossing suspects' residences is completely outdated.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?