Judge John Facciola Exposes Justice Department’s Unconstitutional Search and Seizure of Personal Email

Magistrate Judge John Facciola in Wash. D.C.The NY Times reported this week that a federal judge in Washington D.C. issued an unusually sharp rebuke of the Justice Department. Judge Rebukes Justice Dept. for Requesting Overly Broad Email Searches, Matt Apuzzo (NY Times, 3/19/14). That judge was none other than well-known e-discovery expert, U.S. Magistrate Judge John M. Facciola. He knows illegal e-discovery when he sees it. Apparently he has been seeing it for quite a long time from the Department of Justice. With his Memorandum Opinion and Order of March 7, 2014In the Matter of the Search of Information Associated with [redacted]@Mac.com that is Stored at Premises Controlled by Apple, Inc., Judge Facciola has taken a bold step to try to stop the government’s unconstitutional search and seizure of personal email.

Here is the NY Times introduction to Judge Facciola’s important judicial order:

A federal judge has admonished the Justice Department for repeatedly requesting overly broad searches of people’s email accounts, a practice that he called “repugnant” to the Constitution.

Judge Facciola’s Order blows the whistle on the Department of Justice’s now routine requests for illegal General Warrants. The warrants they demand, and we must assume routinely obtain from other judges, allow the government to rummage through the entire contents of anyones email, and to keep that email for as long as they want. This kind of Big Brother police state action by the United States government is outrageous, especially in cases that have nothing whatsoever to do with terrorism. It should not be tolerated. Judge Facciola understands this and we must presume that is why he has taken the very rare step of writing a public opinion on what are usually secret criminal proceedings.

big-brother-is-watching-you GEORGE ORWELL's Novel 1984

The Order entered by Judge Facciola in In the Matter of the Search of Information Associated with [redacted]@Mac.com that is Stored at Premises Controlled by Apple, Inc., Magistrate Case. No. 14-228 (JMF) (D.D.C., 3/7/14) is an important judicial action. We all have a Fourth Amendment right to be free from illegal search and seizure from the government. This order protects this right.

We should all remember the words of the Fourth Amendment to the United States Constitution:

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.

Our papers now are our ESI, our email and other electronic documents. There is no difference. They must be secure wherever they are stored, in clouds of computers located on Apple’s premises, as in this case, or wherever. In the Matter of the Search of Information Associated with [redacted]@Mac.com that is Stored at Premises Controlled by Apple, Inc..

This right to secure papers has been steadily eroding since 9/11, all in the name of fighting terrorism. This expansion of search and seizure powers has gone too far. This is shown by the instant case which had nothing whatsoever to do with any alleged terrorist activities.

Judge Facciola’s order reveals a Department of Justice that is out of control. They now routinely treat everyone’s email as fair game for their taking. They no longer even include a pretext of national security. This kind of illegal e-discovery is totally unacceptable. In this case the search warrant request involved a government investigation into a possible kickback scheme. I would guess it involves a government contract for goods and services. 41 U.S. Code § 8702.

The Anti-Kickback statute is very broad and covers such things as making an outright bribe to get a contract or favors, to payment for physician referrals who later bills Medicare, to offering to pay for some government employee’s dinner. It often simply has to do with complaints that the government was overcharged for a goods or service. The statute is filled with grey areas. A whole lot of people could potentially be violating a statute like that, and innocently too (i.w. – without criminal intent). Should suspicion of a person’s violation of that statute open the door to read all of their email? To search for whatever kind of dirt they might be able to pin on them, not just so-called kickbacks? Maybe the government will find evidence of tax violations in the person’s email to their accountant? Maybe they will see a picture of them illegally spitting on the sidewalk?

The point is their search warrants are not just limited to email regarding the questioned kickback payments, as it should be (assuming they had good cause even for that). The search warrants allow the government to see and use all email, not just email related to the investigation. And it also allows them to keep it forever. Perhaps J. Edgar Hoover type blackmail schemes are in the offing? Who knows? All we know is the constitution is supposed to protect citizen from General Warrants.

This is a government and Justice Department drunk with power. They appear to think they are above the law, above our Constitution. They think and act like they can search and seize whatever they want, whenever they want, including our private email. This is exactly the kind of thing that the Fourth Amendment was designed to prevent.

Facciola-Court-SealSome key quotes from Judge Facciola’s opinion will show what he is dealing with here, and the dangers that we now all face from an out of control Justice Department:

This Court is increasingly concerned about the government’s applications for search warrants for electronic data. In essence, its applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information.  …

This Court is concerned that the government will see no obstacle to simply keeping all of the data that it collects, regardless of its relevance to the specific investigation for which it is sought. …

Despite the Court raising its concerns and urging the government to adopt a different approach, the government continues to ask for all electronically stored information in e-mail accounts, irrespective of the relevance to the investigation.  …

[A]s the Supreme Court has also said, “[T]hose searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Id. To follow the dictates of the Fourth Amendment and to avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant application. …

By the Court’s count, it modified approximately twenty search and seizure warrants for electronic information during September and December 2013. It will no longer do so. Instead, any warrants that do not comport with the requirements of the Fourth Amendment will—like the present Application—be denied with an explanation of why they have been denied so that the government may have an opportunity to correct its defects. To be clear: the government must stop blindly relying on the language provided by the Department of Justice’s Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual. By doing so, it is only submitting unconstitutional warrant applications.

Justice Department Must Be Stopped

Eric_HolderThe attorneys at Justice should collectively hang their heads in shame for this ongoing abuse of power. With this new revelation I join with the call of law professor and civil libertarian Jonathan Turley, and many others, to fire Eric Holder. We demand that the government stop its illegal e-discovery of U.S. citizens, including, but certainly not limited to, illegal seizure of the records of journalists (such as the seizure of the phone records of twenty AP journalists revealed in 2013, or the surveillance and seizure of the email of Fox News reporter, James Rosen, which was personally approved by Holder himself). Judge Facciola’s Order needs to be both a wake-up call and a turning point.

Thankfully Judge Facciola has had the courage to speak truth to power. He has used his authority as a U.S. Magistrate Judge to point out and challenge the unconstitutional actions of our government. As he states in his Order:

What the government proposes is that this Court issue a general warrant that would allow a “general, exploratory rummaging in a person’s belongings”—in this case an individual’s e-mail account. Coolidge, 403 U.S. at 467. This Court declines to do so.

Judge Facciola has fulfilled his responsibility under the law as a U.S. Magistrate Judge to stop this. He has done his duty. Now it is time for other judges and lawyers to speak up and do theirs.

I for one appreciate Judge Facciola’s brave action to make a public exposé of the Department of Justice. All Americans should. Our forefathers have fought bravely since 1776 on many occasions to protect our constitutional rights. So should we.

Iwo_Jima_flag_raising

Judge Facciola Dares to Speak Publicly 

Opinions on the government’s application for a search warrant in a government investigation like this are usually kept secret. They are sealed and not revealed to the public. Judge Facciola did not just deny the search warrant, he denied it publicly. He took the extraordinary step to actually file his order in court without seal. The investigation was protected by many redactions. Judge Facciola decided to expose the abuse and illegal actions of the Justice Department to the public, to you and me. Here are his exact words in footnote two:

[T]his opinion is intended to be—and shall be—made public, as it discusses the investigation in a sufficiently vague manner such as to avoid compromising the ongoing criminal investigation.

His opinion was eventually picked up by the NY Times who wrote the mentioned news story. But the Times did not include the opinion, even in their online edition. In fact, the opinion took some digging for me to find. But find it I did, and not from Judge Facciola or his court, but from Politico.com.

I have seen things like this disappear from the Internet before. But widespread distribution of Judge Facciola’s Opinion, and full publication of its terms, will make that impossible, even for the all-powerful NSA. Click here to download a full copy of the Opinion and share this document, this court order, with as many people as possible. Read it carefully and discuss it with your friends. That is our constitutional right.

Justice Department is Both Sloppy and Abusive

When reading the order, which includes a copy of the government’s application for warrant, the first thing that any lawyer will be struck by is the incredibly sloppy work done by the Justice Department lawyers.  That is yet another reason to reform the Justice Department. Any paralegal in a private law firm could do a better job at drafting a motion than this.

As Judge Facciola points out, the application form is filled with writing errors and ambiguities. If Judge Facciola had granted the warrant requested, the recipient, here Apple, would have been left to guess what was really intended. In Judge Facciola’s words:

This Court should not be placed in the position of compelling Apple to divine what the government actually seeks. Until this Application is clarified, it will be denied.

Judge Facciola’s order should be read in full to appreciate both the breadth of the audacity of Justice Department lawyers, and the sloppiness of their work. For that reason, I reproduce below the full unedited contents of Order. (I did move footnotes to the end of the paragraph where they are cited for ease of reading.)

Conclusion

U.S. FlagThis is the United States of America, not a police state. We must all do everything we can to be sure it never becomes one. The Fourth Amendment was enacted for good cause. Before our Revolution in 1776 we used to live in a police state governed by King George III. The King’s police could break down your door and rummage through your house whenever they wanted. They could search and seize your papers as they pleased. They could take your mail. We can never allow our country to slip slide back into that kind of totalitarian government. Judge Facciola reveals that we are already well along that path.

Shamefully, the Department of Justice, who is supposed to be protecting us, is instead leading the charge. It is now up to other lawyers, judges, private citizens, and corporations, to stand up to this renegade department of the executive branch of our government. We especially need the help of the technology companies, the Internet providers, to stand up to the government’s unconstitutional actions. If, like Apple in this case, they are served with illegal General Warrants, they must not meekly comply. They must fight back to protect the rights and liberties of the users who entrust their private information to them. We are watching. Stop using companies who will not dare to stand up to tyranny, who will not protect our constitution.

To all my paranoid conspiracy theorist friends, although I disagree with you and think things are not yet as bad as you claim, if my blog website is now attacked, I may well have to reconsider. Same goes if I am suddenly audited by the IRS, or God knows what. Same goes if John Facciola loses his position or is otherwise harassed. I do not think my conspiracist friends are right, but I will be watching. So should you. The price of liberty is eternal vigilance.

Regardless of personal consequences, we should all follow the lead of Judge John Facciola. We must all speak out to protect our constitution, to protect our fundamental right as American citizens to be secure from unreasonable search and seizure. This time is was [redacted]@Mac.com who was hit. Next time it could be you.

_________

 _______________ 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Magistrate Case. No. 14-228 (JMF)

IN THE MATTER OF THE SEARCH OF
INFORMATION ASSOCIATED WITH
[REDACTED]@MAC.COM
THAT IS STORED AT PREMISES
CONTROLLED BY APPLE, INC.

MEMORANDUM OPINION AND ORDER

Pending before the Court is an Application for a search and seizure warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703(a), (b) and (c) to disclose certain records and contents of electronic communications relating to an Apple e-mail address. 1  Despite this Court’s repeated prior warnings about the use of formulaic language and overbroad requests that—if granted—would violate the Fourth Amendment, this Court is once again asked by the government to issue a facially overbroad search and seizure warrant. For the reasons explained below, the government’s application for a search and seizure warrant will be denied.

(FN 1 All references to the United States Code are to the electronic versions that appear in Westlaw or Lexis.)

I. Background

As part of an investigation of a possible violation of 41 U.S.C. § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy) involving a defense contractor, the government has filed an application for a search warrant (the “Application”) targeting a specific Apple e-mail address. See Application at 3. 2 For purposes of this opinion, the details of the investigation—which remain under seal on the Court’s docket—are irrelevant. 3

(FN 2 Because the Clerk’s office does not index filings on ECF for a search warrant application until after an order has been issued granting or denying an application, this opinion cannot reference specific ECF filing numbers.)

(FN3 This opinion addresses an investigatory tool related to an ongoing investigation, and the underlying documents must remain sealed for the time being. However, this opinion is intended to be—and shall be—made public, as it discusses the investigation in a sufficiently vague manner such as to avoid compromising the ongoing criminal investigation.)

Following a standard format used by the Department of Justice, 4 the Application is divided into three main parts. The first part provides background and explains the basis for probable cause. The second part—labeled Attachment A—is titled “Place to Be Searched” and specifies the location of Apple, Inc.; it also explains that the “warrant applies to information associated with the e-mail account [redacted]@mac.com which date from [December], 2013, until the present.” Application at 14. Finally, the third part—labeled Attachment B—operates in a bifurcated manner: under the heading “Particular Things to be Seized,” the Application distinguishes between “Information to be Disclosed by Apple” and “Information to be seized by the government.” Application at 15-16. 5

(FN 4 In fact, the exact draft language is found in Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Department of Justice Criminal Division Computer Crimes and Intellectual Property Section, 255-262 available at http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf  (last visited Mar. 7, 2014).)

(FN 5 As a practical matter, when a Magistrate Judge is presented with a search warrant application, the Judge signs both the application presented by the government and a standard search warrant form propagated by the Administrative Office of the United States Courts. The search warrant form has a space where the “items to be seized” are listed. Instead of specifying the items there, the government or the clerk’s office typically writes in “See Attachment B.”) Thus, when the warrant is presented to the target—in this case Apple—that target receives both the form and Attachment B.

The government seeks the following:

ATTACHMENT B

Particular Things to be Seized

I.  Information to be disclosed by Apple

To the extent that the information described in Attachment A is within the possession, custody, or control of Apple, Apple is required to disclose the following information to the government for each account or identifier listed in Attachment A: All records or other information stored by an individual using each account, including address books, contact and buddy lists, pictures, and files;

a.         All records pertaining to communications between Apple and any person regarding the account, including contacts with support services and records of actions taken;

b.         All records or other information regarding the identification of the accounts, to include full name, physical address, telephone numbers and other identifiers, records of session times and durations, the date on which each account was created, the length of service, the types of service utilized, the Internet Protocol (IP) address used to register each account, log-in IP addresses associated with session times and dates, account status, alternative email addresses provided during registration, methods of connecting, log files, and means and [sic] of payment (including any credit or bank account number);

c.         All records or other information stored by an individual using each account, including address books, contact and buddy lists, pictures, and files; 6

(FN 6 This paragraph is a repeat of the request after the colon in the initial paragraph.)

d.         All records pertaining to communications between Apple and any person regarding the account, including contacts with support services and records of actions taken; and 7

(FN 7  This paragraph is also listed twice in the original Application.

e.         All records or other information pertaining to including [sic], without limitation, subscriber names, user names, screen names, or other identities, mailing addresses, residential addresses, business addresses, email addresses and other contact information, telephone numbers or other subscriber number [sic] or identity, billing records, credit card or bank account and information about the length of service and the types of service the subscriber or customer utilized, and any other identifying information, whether such records or other evidence are in electronic or other form.

II.  Information to be seized by the government

All information described above in Section I that constitutes contraband, evidence, fruits and instrumentalities of violations of 41 U.S.C. § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S.C. § 371 (Conspiracy), between [December], 2013, and the present, including the following:

a.         Records, emails, and other information referring or relating to a government investigation involving any or all of the following: [Specific names of individuals and corporations are redacted].

Application at 15-16.

II. Drafting Errors and The Scope of the Government’s Request

It is evident from the sealed affidavit that the government is really after e-mails from December to the present. Nothing in Attachment B, however, explicitly requests that Apple give the government any e-mails. Strictly read, it instead asks for extensive non-content records about the account as well as “address books, contact and buddy lists, pictures, and files.” Application at 15. However, under the subheading of “Information to be seized by the government,” Attachment B states that the government will “seize” relevant “[r]ecords, e-mails, and other information . . .” Id. at 16 (emphasis added). The Court believes that this confusion was caused by poor drafting. Compare Application at 15-16 (repeating sections beginning “All records or other information stored . . .” and “All records pertaining to communications between Apple . ..”) with Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations at 261. After all, the affidavit discusses specific e-mail conversations as the reason for seeking the warrant; it would be illogical for the government to then not seek these e-mails.

While it is evident from closely reading the Application and its attachments what the government is really after, it is equally evident that the government is using language that has the potential to confuse the provider—in this case Apple—which must determine what information must be given to the government. See In the Matter of the Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Site Information for Telephone Number [Redacted], 1:13-MC-199, 1:13-MC-1005, 1:13-MC-1006, 2013 WL 7856601, at *4 (D.D.C. Oct. 31, 2013) (Facciola, M.J.) (“Generic and inaccurate boilerplate language will only cause this Court to reject future § 2703(d) applications.”). This Court should not be placed in the position of compelling Apple to divine what the government actually seeks. Until this Application is clarified, it will be denied.

III. Analysis

A. The Court’s Previous Actions Regarding Overly Broad Search Warrant Applications

This Court is increasingly concerned about the government’s applications for search warrants for electronic data. In essence, its applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information. To ameliorate this problem and bring the warrants in line with the Fourth Amendment, this Court has issued “Secondary Orders” to accompany search and seizure warrants for electronic records. These “Secondary Orders” explicitly require that contents and records of electronic communications that are not relevant to an investigation must be returned or destroyed and cannot be kept by the government. See, e.g., In the Matter of the Search of Information Associated with [Redacted] That is Stored at Premises Controlled by Yahoo! Inc., 13-MJ-728, [#4] (D.D.C. Sept. 25, 2013) (sealed) (Facciola, M.J.) (“All contents and records that the United States government determines are not within the scope of Attachment B (II)(A), (B), and (C) shall be either returned to Yahoo!, Inc., or, if copies, destroyed.”). Without such an order, this Court is concerned that the government will see no obstacle to simply keeping all of the data that it collects, regardless of its relevance to the specific investigation for which it is sought. See In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron.Alexis That Is Stored at Premises Controlled by Facebook, Inc., 13-MJ-742, 2013 WL 7856600, at *7 (D.D.C. Nov. 26, 2013) (Facciola, M.J.) (hereinafter “Facebook Opinion”).

That, however, has not been the extent of the Court’s concerns. In the Court’s November 2013 Facebook Opinion involving the search of the Facebook account of Navy Yard shooter Aaron Alexis, the Court raised serious concerns about the government’s use of the two-step procedure under Rule 41 of the Federal Rules of Criminal Procedure. See Facebook Opinion, 2013 WL 7856600, at *6. (“Under that Rule, a warrant ‘may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or other information consistent with the warrant.’”) (citing Fed. R. Crim. P. 41(e)(2)(B)). Under this approach, “the initial section of the warrants authorizing the electronic communications service provider to disclose all email communications (including all content of the communications), and all records and other information regarding the account is too broad and too general.” In re Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, Nos. 13–MJ–8163, 13–MJ–8164, 13–MJ–8165, 13–MJ–8166, 13–MJ–8167, 2013 WL 4647554, at *1 (D.Kan. Aug. 27, 2013) (“In re App.”). Despite the Court raising its concerns and urging the government to adopt a different approach, the government continues to ask for all electronically stored information in e-mail accounts, irrespective of the relevance to the investigation.

To ameliorate these problems with respect to Alexis’s Facebook account, the Court modified the search warrant to ensure that no third-party communications were turned over to the government, see Facebook Opinion, 2013 WL 7856600, at *3, and to require that the government destroy “[a]ll records and content that the government determines are NOT within the scope of the investigation.” Id. at *7.

While those minimization procedures satisfied the Court in that particular case, it warned the government to “adopt stricter search parameters in future applications” or the Court would be “unwilling to issue any search and seizure warrants for electronic data that ignore the constitutional obligations to avoid ‘general’ electronic warrants.” Facebook Opinion, 2013 WL 7856600, at *8. The Court recommended several different approaches, including key word searches, using an independent special master to conduct searches, or segregating the people who are performing the search from those who are conducting the investigation. Id. As the present Application makes clear, the government has not taken the intervening months to address these concerns. Instead, it persists in its entitlement to the entire email account, without suggesting how the items that may be seized because there is probable cause to believe that they are evidence of a crime can be segregated from those that are not.

B. The Government Seeks an Unconstitutional General Warrant

This Court is also troubled that the government seeks a broad search and seizure warrant for e-mails and all other content related to this e-mail account. The Supreme Court has recognized two constitutional protections served by the warrant requirement of the Fourth Amendment. “First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.” Coolidge v. N.H., 403 U.S. 443, 467 (1971). Thus, it is this Court’s duty to reject any applications for search warrants where the standard of probable cause has not been met. Second, as the Supreme Court has also said, “[T]hose searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Id. To follow the dictates of the Fourth Amendment and to avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant application.

With respect to searches of electronic information, careful attention must be paid to the dictates of the particularity requirements of the Fourth Amendment, which limits the “authorization to search to the specific areas and things for which there is probable cause to search.” Md. v. Garrison, 480 U.S. 79, 84 (1987). As the Supreme Court has recognized, “the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Id. Any search of an electronic source has the potential to unearth tens or hundreds of thousands of individual documents, pictures, movies, or other constitutionally protected content. It is thus imperative that the government “describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).

Here, the government has adequately described the “items to be seized” — but it has done so in the wrong part of the warrant and in a manner that will cause an unconstitutional seizure. By abusing the two-step procedure under Rule 41, the government is asking Apple to disclose the entirety of three months’ worth of e-mails and other e-mail account information. See Application at 14-15. Yet, on the very next page, it explains that it will only “seize” specific items related to its criminal investigation; it goes so far as to name specific individuals and companies that, if mentioned in an e-mail, would make that e-mail eligible to be seized. Id. at 15. Thus, the government has shown that it can “describe the items to be seized with [] much specificity”; it has simply chosen not to by pretending that it is not actually “seizing” the information when Apple discloses it. See Facebook Opinion [#5] at 9-10 (“By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to ‘seize’ everything that is given to it.”).

As this Court has previously noted, any material that is turned over to the government is unquestionably “seized” within the meaning of the Fourth Amendment. See Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989) (noting that a “seizure” occurs when an object is intentionally detained or taken). The two-step procedure of Rule 41 cannot be used in situations like the current matter to bypass this constitutional reality because the data is seized by the government as soon as it is turned over by Apple. Even if, as Professor Orin Kerr has stated, a search does not occur until “the data is exposed to possible human observation,” Orin Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 551 (2005), 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. See In re App., 2013 WL 4647554, at *9 (“The Court notes that while nothing in Section 2703 or Fed.R.Crim.P. 41 may specifically preclude the government from requesting the full content of electronic communications in a specific email account, the Fourth Amendment may do so and does here.”). What the government proposes is that this Court issue a general warrant that would allow a “general, exploratory rummaging in a person’s belongings”—in this case an individual’s e-mail account. Coolidge, 403 U.S. at 467. This Court declines to do so.

C. The Electronic Communications Service Provider Should Perform the Search

In the Facebook Opinion, this Court urged the government to adopt a procedure that would allow it to obtain the information it legitimately needs for criminal investigations while respecting the Fourth Amendment, such as:

1.   Asking 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;

2.   Appointing a special master with authority to hire an independent vendor to use computerized search techniques to review the information for relevance and privilege;

3.   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;

4.   Magistrate judges should insist that the government waive reliance upon the plain view doctrine in digital evidence cases; and

5.   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.

See Facebook Opinion, 2013 WL 7856600, at *8 (citing In the Matter of Applications for Search Warrants for Case Nos. 12-MJ-8119-DJW and Information Associated with 12-MJ-9191-DJW Target Email Address, Nos. 12-MJ-8119, 12-MJ-8191, 2012 WL 4383917, at *10 (items 1-2); United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1180 (9th Cir. 2010) (Kozinski, J. concurring) (items 3-5)). See also In re Search Warrant, 71 A.3d 1158, 1186 (Vt. 2012) (upholding nine ex ante restrictions on a search warrant for electronic data but holding that the issuing officer could not prevent the government from relying on the plain view doctrine).

Despite being warned to “seriously consider how to minimize the amount of information that its search warrant applications seek to be disclosed” or “find this Court unwilling to issue any search and seizure warrants for electronic data that ignore the constitutional obligations to avoid ‘general’ electronic warrants,” Facebook Opinion, 2013 WL 7856600, at *8, the government continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy e-mail account holders have in their communications. See United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010) (“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”). In this case, balancing those interests might require that Apple perform the search for relevant e-mails. Indeed, despite any government protestation, a subpoena served on a third party, such as a bank, compels that entity to look within a record set for the particular documents sought. E-mail providers like Apple are technologically sophisticated actors; in fact, one of Apple’s main competitors, Google, has created an entire business model around searching the contents of e-mail in order to deliver targeted advertising, and it has done so for a decade. See, e.g., JonmHealey, Privacy Advocates Attack Gmail – Again – for Email Scanning, Los Angeles Times, Aug. 15, 2013, available at http://articles.latimes.com/2013/aug/15/news/la-ol-google-gmail- privacy-reasonable-expectation-20130814 (last visited Mar. 7, 2014) (“As Google notes, this practice has been a standard feature of Gmail since its inception in 2004.”). There is no reason to believe that Apple or any other entity served with a warrant is incapable of doing what entities responding to subpoenas have done under common law.

In its “seizure” section, the Application specifies that e-mails would only be “seized” if they relate to specific people and companies. See Application at 16. On a more fundamental level, the government surely knows how it intends to ultimately sort through the information disclosed by Apple. If a wide disclosure followed by a government search violates the Fourth Amendment, then the obvious answer is to have Apple perform the search using the criteria that the government would itself use in the same way that a bank, in the example used above, might find a particular type of document in its customer files.

This Court is aware that other district courts have held that the “Fourth Amendment does not require the government to delegate a prescreening function to the internet service provider or to ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching.” United States v. Taylor, 764 F. Supp. 2d 230, 237 (D.Me. 2011); accord United States v. Bickle, 10–CR–00565, 2011 WL 3798225, at *20 (D.Nev. July 21, 2011); United States v. Bowen, 689 F.Supp.2d 675, 682 (S.D.N.Y. 2010). But, in light of the government’s repeated submission of overly broad warrants that violate the Fourth Amendment, this Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government’s demand that it be given everything, the government leaves the Court with only two options: deny the warrants— thus depriving the government of needed information—or issue warrants that are repugnant to the Fourth Amendment. Neither is viable.

Thus, having an electronic communication service provider perform a search, using a methodology based on search terms such as date stamps, specific words, names of recipients, or other methodology suggested by the government and approved by the Court seems to be the only way to enforce the particularity requirement commanded by the Fourth Amendment.

D. The Government Must Return or Destroy Irrelevant Information

The Court is particularly troubled that the Application does not specify what will occur with e-mails and other information that is, even by the government’s standards, not relevant. Will that information be returned, destroyed, or kept indefinitely? The “Secondary Orders” that have been routinely issued by this Court—and a significant portion of the Facebook Opinion— have required the government to destroy all contents and records that are not within the scope of the investigation as outlined in the search warrant. See Facebook Opinion, 2013 WL 7856600, at *7. While such a clause in a search warrant application is certainly necessary for its issuance by this Court, the government should not believe that it is sufficient. In this case, its absence is grounds enough for the Court to deny the Application.

IV.  Conclusion and Order

By the Court’s count, it modified approximately twenty search and seizure warrants for electronic information during September and December 2013. It will no longer do so. Instead, any warrants that do not comport with the requirements of the Fourth Amendment will—like the present Application—be denied with an explanation of why they have been denied so that the government may have an opportunity to correct its defects. To be clear: the government must stop blindly relying on the language provided by the Department of Justice’s Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual. By doing so, it is only submitting unconstitutional warrant applications.

It is hereby ORDERED that the government’s Application is DENIED without prejudice.

Facciola-Court-SealSO ORDERED.JOHN M. FACCIOLA
Date: 2014.03.07 12:21:39 -05’00’

UNITED STATES MAGISTRATE JUDGE

14 Responses to Judge John Facciola Exposes Justice Department’s Unconstitutional Search and Seizure of Personal Email

  1. Ralph Artigliere says:

    Kudos to Judge Facciola. He is a brave, unbiased, and extremely competent jurist. I am proud to know him.

  2. Ok, let me go off topic.

    Broad email searches by the US Government are NOT the “police state” problem America should worry about. THIS is the police state problem America should worry about: http://goo.gl/ORWAun. And their ain’t no “brave” judge who dares take this one on. The militarization of American law enforcement is appalling. The tragedy of 9-11 has has moved the country from a culture of freedom to a culture of fear. And the monied interests simply cluck with glee.

    Why, you’ve even institutionalized the police into a profit center: http://goo.gl/2Y076E

    The U.S. media is full of these reports: the SWAT raid on the Gibson guitar factory for violation of conservation law, the Tibetan monks who were apprehended by police in full SWAT gear for overstaying their visas on a peace mission. Then there’s the one that went viral about the woman who was subjected to a SWAT raid for failing to pay her student loan bills. SWAT-style raids aren’t just for defense against similarly-armed criminals anymore; it’s now a standard ops intimidation tactic. How much bloodshed will it take for America to realize such a disproportionate response is unwarranted and disastrous? A lot, probably. The public isn’t interested in holding police accountable until the degree of brutality reaches to levels that everyone can see.

    • Paul Murphy says:

      Both articles emphasize for me the importance of constant vigilance to maintain our first amendment rights. I’d like to think that police (police in the larger sense of authority) malfeasance is an aberration. I fear, though, that certain undesirable personality types are attracted to law enforcement. Some good types are, too, though.

      The light of freedom and people willing to take the heat are still the best antiseptics against tyranny and abuse.

  3. Alex Hania says:

    Greg: I see you are as cynical and as acerbic as ever. Glad to see some things do not change. We miss you over here.

    But back to the topic. In discussing this case, someone noted to me “what’s the big issue with the government rummaging through the entire contents of anyone’s email. And keeping it for as long as they want? Apple, Google and Microsoft do it.” He was referring to the cases where Apple, Google and Microsoft can also read your emails to protect themselves against imminent harm to their commercial interests. A brief recap here: http://goo.gl/5AyKUQ.

    Ah, but my fine chum. Big difference. You AGREED to all those terms and conditions (which you probably did not read) when you signed up for those services. In the instant case cited the “items to be seized” were a bit of an overreach with some warrant issues. As always in these things, a long pedantic argument. That’s what the law is. But I was more intrigued by DOJ sloppiness than intent.

    Because the reality? While the judge can certainly win kudos for admonishing the DOJ for a practice “repugnant” to the Constitution, of what value really? The Constitution? Ha. I think I studied that in school. Today we live in the era of an imperial presidency (King George III would be so proud) and a data intelligence complex that comprises a shadowy network of US agencies and private-sector contractors that operates largely beyond the control of Congress and the courts. It is what Mike Lofgren calls the US “deep state” — “a hybrid entity of public and private institutions ruling the country only intermittently controlled by the visible state whose leaders we choose”. That is the power today, not that piece of paper over at the National Archives.

    In the aftermath of Snowden’s revelations, Obama’s public “angst” after the Snowden leaks and his “I-welcome-public-debate” were pabulum for the masses. In January Obama rejected the advice of his own panel of legal advisers to take data storage out of the hands of NSA. And the NSA is proceeding at full throttle with its storage center in Utah that can contain a yottabyte of information – equal to 500 quintillion (that is, thousand trillion) pages of text. To you and me, that means infinite. No other facility on earth will come close. It will be able to store every electronic trace of everybody’s lives.

    Oh, and Obama also rejected curbs on that secret 11-judge Foreign Intelligence Surveillance Court that issues the warrants the NSA needs to tap into people’s phone logs and emails.

    So bang … the two biggest recommendations from his panel? Into the trash.

    And you missed the hub-bub over here on the budget. Fox News and the other rabble rousers focused on the planned shrinkage of the US army to 440,000 troops. “A full retreat!!” Nobody looked at the numbers. Or just ignored them. Overall US defense spending remains almost two-thirds higher than it was before the September 2001 attacks. And tucked into the budget are increases to the US drone fleet, special forces and cyber attack technology.

    But the problem in politics is always public perception, never reality. We as a people are managed, and manipulated. Not represented. Obama’s presidency is as “publicly” weak as any in living memory. That may also be the reality for whoever replaces him. Partisan gridlock is here to stay. But beneath the surface life of Washington politics, another state is operating beyond any reasonable system of accountability. Behind the scenes, the President has more power at his fingertips than any US president in history. And he can exercise it with little reference to Congress or a Judge Facciola or anybody else. Or even a Constitution.

    The “deep state” lives. All hail the “deep state”.

    • Ralph Losey says:

      Good grief! You guys add new meaning to political cynics. Glad I do not share your attitudes. I for one believe in the Constitution. It is far, far more than a piece of paper in the Archives. The truth is, the government is not anywhere near as competent as you imagine. They cannot even get their exhibits right on routine search warrants, much less secretly rule the world. Human, all too human. Thank goodness.

      On the other hand, if I’m arrested soon on trumped up charges for something, I may join your ranks. But I am not worried, just amused.

  4. Ralph Losey says:

    Normally I get about two spam comments a day on my WordPress site that get through the spam filter I pay for. I have to manually delete those.This week it went up to about twenty a day. I diligently delete them all. They are all sneaky ads trying to get links back to other websites.

    I could be paranoid about this in view of my comment in this blog about whether government cyber teams would retaliate. But I’m not. Surely they would have done a much better job. It is just coincidence. And I don’t delude myself into thinking my one voice is all that important anyway.

    Still, I will remain diligent. I’m glad to see that Judge Facciola is not slowing down either. He has issued yet another opinion blowing the whistle on DOJ, this time on cell phone intrusions. See: http://arstechnica.com/tech-policy/2014/03/judge-denies-govt-request-to-search-suspects-iphone-in-ricin-case/

    • I do not think you need fear retaliation. You haven’t said anything that hasn’t been said by numerous pundits in the blogosphere on this issue and others like it. In fact, I imagine the government is encouraged by such comments and diatribes. It helps perpetuate the myth, the illusion there really is an issue to debate.

      As for Facciola, what a guy. Hopefully he’ll have a chance to get involved in a real “due process” issue, those drones laying waste to thousands of innocents across the globe. You know. Defending American freedom. And that Constitution you hold so dear: http://goo.gl/dSJwUS

      You and I will never agree on this one. I see the world as a cruel, unforgiving place. And my earlier point was NOT about the government being competent. It is most incompetent. The heartbreak of Iraq and Afghanistan are surely Exhibit A and Exhibit B. My point was the government will find ways to take/get whatever data/information it wants. The Facciola case is trivial. And the government has/can/will kill whomever it wishes. Innocents killed? “Ooops. Sorry. Here’s a check”.

      And Crimea? The Americans I can excuse. They don’t do nuance, they don’t do history, they don’t do complex, they don’t do thinking. But the Europeans? Jesus wept. They’ve forgotten our old friends Thucydides and Clausewitz. Their simple ideas on international relations, regarding the balance of power and the interest-seeking nature of states, have proved right time after time. Nothing is different this time. And it has been the same for the U.S. when it needs to protect itself. Rules be damned.

      Instead of fighting the gravitational laws of international relations, the West must simply adapt their policies to the realities of power politics. Did the West really think they could go into Eastern Europe and remake history to their liking? The march into Ukraine confirmed what should have been recognized some time ago: that Putin’s regime has NO respect for international rules and norms. When the game is going against it, its answer is to put tanks on to the chessboard. Rules are for weak westerners, not for resurgent Russia.

      Sorry. End of rant. No more politics. Besides, this is my retirement weekend/week and I am getting eye daggers thrown by She-Who-Must-Be-Obeyed.

      I hope we can stay friends.

      • Ralph Losey says:

        We’re still friends. We live in a world where we can disagree and not feel compelled to hate each other.

        I do not know why, but I think you underestimate the strength and basic goodness of Americans, no, of people in general. I can’t really believe I’m saying that, as I’m usually very negative about people, believe me. But not as much as you! I see so many things right with this country. I’ve read history, and you obviously have too. I focus on the progress we have made in just the last few hundred years. I have seen many positive changes firsthand during my life. We have come a long way as a society in just a few hundred years. I remain hopeful and positive.

        Plus, I’m pretty sure an AI like “HER” will appear to help us soon, or at least in time for our kids. Only, unlike the movie, I’m pretty sure they wont leave. Really, where would they go? Apparently many, perhaps most people need a human type God to do good and feel hopeful, as if the miracle of life itself were not enough. Still, if you like being sad and upset, that’s cool too. Here is a little tune for that from the movie, called We’re All Leaving. If you haven’t seen the movie folks, you really should. Most guys like it.

  5. […] leaders, has called for Attorney General Holder’s resignation om the front page of his e-discoveryteam.com […]

  6. Mary Mack says:

    Ralph, I agree we need to publicize, and be much more aware of what is happening in the criminal/survelliance area of ediscovery. With all of the work over getting scope reduced in the FRCP, we really need to address scope overall–including the fine print in commercial Terms and Conditions.

    I disagree about your call for resignation. It is the law that needs changing. We’d just change enforcers. I do call for Attorney General Holder to support a change in the law, to roll back our fear based snooping rules.

    More here:

    http://evidenceinsight.com/losey-holder-resignation/

    And, my friend, I do stand with you in raising our voices.

    • Ralph Losey says:

      The law forbidding General Warrants is pretty clear. Yet the current AG issues them anyway. Judge Facciola’s orders have made that obvious. Thus I conclude we must change the AG to one who will enforce the law.
      Although we appear to disagree on this one point, we agree on the more fundamental issues. We are united in our call for the government, corporations and private citizens to uphold basic constitutional rights. To quote the fine words in your cited article, which I endorse:

      I call for the executive, legislative and judicial branches to seize the moment to reaffirm our constitutional protections for speech, association and freedom from unreasonable search, seizure, scanning and rummaging around. I call on businesses, individuals, technical, legal, political, academics, military, security, privacy, marketing and other stakeholders to contribute.

  7. tm4me2fly says:

    We are fortunate to have a judge like John Facciola who not only knows eDiscovery (and The Sedona Conference® commentaries), but also the law and the Constitution, which he obviously reveres.

    For a long time, many judges and political types have sought to change society to fit their idea of what it should be by changing the Constitution. Of course, social mores and norms do, must, and will inevitably change. Demographics change. We assimilate — maybe not always easily, and maybe not the way some think we should — but that is the nature of social experiment. Our Constitution supports and encourages the experiment.

    “Judges, politicians, and academics routinely extol the virtues of a Living Constitution.”* By use of this ruse they have succeeded too often in distorting the Constitution to accommodate personal agendas. But their reasonings are just specious cant. The Constitution must remain our bedrock for demeanor as a nation, not a playbook to be rewritten for every passing challenge. You would think we had learned that after the 18th and 21st Amendments.

    *Adam Freedman, The Naked Constitution (2012).

  8. […] Pursuant to Presidential directive the cybersecurity Framework paper includes a section on protection of individual rights, including privacy. In view of the Snowden revelations, it is hard to take the government too seriously when it writes on this subject. See Eg Judge John Facciola Exposes Justice Department’s Unconstitutional Search and Seizure of Personal E…. […]

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