Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Judge again rejects feds over email search

A federal magistrate who has refused or modified a slew of search warrants for email records in recent months out of concerns that they were overly broad has shot down a Justice Department proposal which appeared intended to allay his worries.

Magistrate Judge John Facciola of U.S. District Court in Washington said in a ruling issued Monday that prosecutors' proposal to seal information deemed beyond the scope of the warrant was inadequate to resolve the constitutional violation caused by seizing the contents of an entire email account.

"The government is unwilling—for whatever reason—to give up its policy of seizing large quantities of e-mails and other Fourth Amendment protected data even after this Court has repeatedly warned it against doing so," Facciola wrote Monday in a ruling rejecting prosecutors' request to seize data from an Apple (.mac) e-mail account. "Mere convenience does not allow the government to violate the Fourth Amendment and seize data wholesale."

Facciola suggests that Apple or other email providers could search for information relevant to an investigation by using government-provided search terms such as phrases or other individuals relevant to the criminal probe. Prosecutors appear reluctant to have email firms do the searches, perhaps out of concern that would reveal sensitive information about the investigations to outsiders.

The magistrate wrote that keeping the full set of email data under seal but still in the possession of the government was not an adequate substitute for segregating the relevant data and returning it or erasing the remainder.

"The government implies that it will keep data indefinitely that it knows is outside the scope of the warrant," Facciola wrote. He added that the Justice Department's position was "akin to indefinitely keeping all copies of a newspaper’s photographs merely because one or two may show evidence of a crime."

The publicly-released version of Facciola's opinion, posted here, does not identify the individual e-mail account involved or the specific investigation. However, the magistrate said the investigation at issue has to do with allegations of kickbacks relating to a defense contractor.

The Wall Street Journal reported last week on Facciola's jousting with the Justice Department over the email account searches and on similar rulings from a federal magistrate in Kansas, David Waxse. Facciola has also been tangling with prosecutors in recent weeks over gag orders issued to internet firms served with grand jury subpoenas, as Reuters noted.

The magistrates' rulings can be appealed to Senate-confirmed district court judges. The government has done that with respect to some of the gag orders.

Facciola has been staking out new frontiers in internet privacy-related jurisprudence for some time. In 2010, he ruled that Fox News reporter James Rosen was entitled by law to be notified that a gmail account he used was searched in a leak investigation. Judge Royce Lamberth overturned that ruling.