In a rare public rebuke of American prosecutors’ request on accessing a person’s e-mail, a federal magistrate judge in the District of Columbia has denied a government warrant request to search an unnamed user’s @mac.com e-mail address, citing the request as being over broad.

The case appears to offer very little by way of public details for the time being. According to the March 7, 2014 court opinion and order (PDF), the case involves alleged corruption and conspiracy by a defense contractor, and “for purposes of this opinion, the details of the investigation—which remain under seal on the Court’s docket—are irrelevant.”

Further Reading FBI claims right to read your e-mail, just like other federal agencies

Citing a key 2010 appellate ruling establishing a warrant requirement (at least in one United States federal judicial district), Judge John Facciola observed, “[T]he government continues to submit overly broad warrants and makes no effort to balance the law enforcement interests against the obvious expectation of privacy e-mail account holders have in their communications.”

As a magistrate, Facciola has the power to grant search and arrest warrants—and he has done so numerous times in his nearly 17 years on the bench.

Legal scholars note that this case is the latest example of increasing judicial scrutiny in recent years against the government’s overreach in its attempt to gather digital data in criminal investigations.

“I think it reflects a growing recognition that we can't treat e-mail as a separate, less-protected form of communication, either as a matter of law or as a matter of practice,” Brian Pascal, a research fellow with the University of California, Hastings Law School, told Ars. “It's just how we talk these days.”

“The Court believes that this confusion was caused by poor drafting.”

According to Judge Facciola’s order, federal authorities asked the court to grant the warrant request, which asked for “All records or other information stored by an individual using each account, including address books, contact and buddy lists, pictures, and files,” and logged IP addresses, billing details, and more.

However, the judge notes:

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 gives the government any e-mails. Strictly read, it instead asks for extensive non-content records about the account… The Court believes that this confusion was caused by poor drafting. … 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…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.

The judge pointed out that the government is relying on a 2009-era document published by the Department of Justice, “Sample Email Account Search Warrant Affidavit,” which is part of a much larger document: “Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations” (PDF).

This DoJ document pre-dates a 2010 appellate court ruling establishing that the Fourth Amendment does apply to e-mail content searches—in other words, warrants are required (mostly).

At present, under the much-maligned (but frustratingly still-current) 1986-era Electronic Communications Privacy Act (ECPA), law enforcement must get a warrant to access e-mail before it has been opened by the recipient. However, there are no such provisions once the e-mail has been opened or if it has been sitting in an inbox, unopened, for 180 days. In March 2013, the DoJ acknowledged in a Congressional hearing that this distinction no longer makes sense and that the department would support revisions to ECPA. (That outdated distinction is irrelevant in the era of widespread modern e-mail, like Gmail.)

If that weren’t complicated enough, one United States circuit court of appeals decided that federal authorities do need a warrant before accessing e-mail content. That 2010 case, known as United States v. Warshak, has created a split, as other circuits haven’t yet taken up the issue, including the United States Supreme Court. (Google, however, has since taken the public stance that it will follow the Warshak standard.)

“Warshak didn't deal with this issue because it was concerned with the first, threshold issue: whether the Fourth Amendment applies to e-mails,” Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told Ars.

“Once Warshak ruled the Fourth Amendment applied (and as courts accept that), the next issue is going to be how to apply the Fourth Amendment's particularity requirements to e-mail (and other digital searches). This decision shows the court wrestling with how to do this. It's not the first. Even before Snowden, there was judicial discussion about how ensuring digital and electronic searches are particular.”

Fakhoury pointed to the late 2012 decision in which the Vermont Supreme Court imposed limits on the government’s ability to provide narrow restrictions on electronic searches.

“I think post-Snowden, courts are starting to get even more alarmed about the ‘bulk collection’ of electronic records or the government's preferred method of seizing all to search only a small subset of records,” he added.