There was a small but possibly important victory for the Fourth Amendment earlier this month. A Federal Magistrate judge named John M. Facciola (photo above) denied an application for a federal warrant to rummage through a suspects email account. The issue of electronic searches, particularly email searches, has grown in importance during the Obama Administration.
The case involved the search of an apple email account held by a defense contractor. Search warrant applications are usually sealed. Facciola made public his memorandum denying the warrant. Attorneys and other interested parties may be interested to know that the memo is recorded as Magistrate Case. No. 14-228. You should be able to find the ruling here. The government’s response to the ruling will probably be sealed.
The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
To slightly oversimplify a complex issue for clarity, the Obama Justice Department has asserted that with electronic records like emails, companies like AT&T, Apple and Microsoft must disclose everything before the DOJ and other government departments can know what they will actually search. That is the logic the NSA has used to effectively seize email, telephone and other information from virtually all Americans. The government justifies its demands for these massive disclosures by arguing, to paraphrase Professor Orin Kerr, that a search does not occur until the data is exposed to possible human observation.
Judge Facciola ruled March 9 that whether the information is formally searched or merely stored, “the seizure of a potentially massive amount of data without probable cause has still occurred – and the end result is that the government has in its possession information to which it has no right.”
What’s Wrong With That
Responding to Facciola’s ruling, Nate Cardozo, a lawyer with the Electronic Frontier Foundation, told Matt Apuzzomarch of the New York Times last week, “The fact that our data is being held by third-party service providers is allowing the government to engage in fishing expeditions that they’ve never been able to conduct before.” You can read the Times story here.
Citing a ruling in a similar case last year, Facciola ruled that the government must follow five rules when conducting email searches.
Federal policemen must ask “the electronic communications service provider to provide specific limited information such as emails or faxes containing certain key words or emails sent to/from certain recipients.”
Federal police must appoint “a special master with authority to hire an independent vendor to use computerized search techniques to review the information for relevance and privilege.”
“If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant;”
“Magistrate judges should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”
And, “The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.”
This is a dry story. It isn’t sexy which is why it has received so little news coverage. But it is still one of the most important news items in the last month.