Government Goes 'Judge Shopping' For Email Warrant Rubber Stamp, Gets Request Shot Down By Second Judge In A Row

from the setting-the-example-for-our-nation's-law-enforcement-agencies dept

Fri, May 16th 2014 7:46am — Tim Cushing

As we covered recently, a couple of magistrate judges (Judge John Facciola and Judge David Waxse) have started pushing back against the government's broad warrant requests for electronic data. Facciola has now twice sent the government back to rewrite its warrant requests, once in relation to a seized iPhone and another dealing with a person's Gmail account. In the latter, Facciola stated the following:

[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.

The government apparently decided that rather than narrow its request, it would just ask another judge. It took this warrant request all the way across the nation to another magistrate judge in California, hoping to get the rubber stamp it couldn't coax out of the Washington, DC court. Judge Paul Grewal of California's Northern District has just joined Facciola in rejecting the request as being overly broad. He attacks the government's wish to "seize first, search later" approach as inappropriate for the securing of data stored by third parties, which face none of the limitations inherent to searching a computer on site.

The court is nevertheless unpersuaded that the particular seize first, search second proposed here is reasonable in the Fourth Amendment sense of the word. On past occasions, the government at least submitted a date restriction. Here, there is no date restriction of any kind. The activity described in the application began in 2010; Gmail has been broadly available since 2007 and in beta release "since 2004." Nor has the government made any kind of commitment to return or destroy evidence that is not relevant to its investigation. This unrestricted right to retain and use every bit Google coughs up undermines the entire effort the application otherwise makes to limit the obvious impact under the plain view doctrine of providing such unfettered government access.

Even though the warrant and all other court documents are sealed, based on what Grewal states here, it's reasonable to assume the government is seeking every email in this account, dating back to the account's creation. This sort of broad seizure meets no reasonable person's definition of "relevant," especially considering the lack of timeframe limitation.

Grewal goes on from there to criticize the government for its attempt to find someone to rubber stamp its haystack-building efforts.

A final point. This is not the first time that the substance of this application has been before a magistrate judge. On March 26, 2014, United States Magistrate Judge John Facciola denied a previous application for a similar warrant in the United States District Court for the District of Columbia.

The judge grants the government points for not attempting to hide its intentions, but doesn't let it off the hook for its unwillingness to narrow its warrant request.

But there is a long-recognized presumption against duplicating court efforts, what some charitably call "judge shopping."

He points out that the government had other options, including modifying its request or seekng a writ of mandamus. Instead, he states, the government made the shadiest and shabbiest choice: taking its business elsewhere. But it didn't work, and the government's warrant request has again been denied. Judge Grewal doesn't even give the government the option of rewriting and resubmitting, meaning it's probably going to have to take another run at this warrant in front of Judge Facciola. Or maybe it will just go on a tour of courthouses until it finds the rubber stamp it wants -- one that doesn't care about the messy paper trail of failure it's leaving behind it.

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Filed Under: doj, email, john facciola, judge shopping, paul grewal, warrant

24 Comments

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Ninja (profile), 16 May 2014 @ 6:57am

Ouch. Right in the face. 2 out, 48 to go. Or do we really think they will make any effort to actually narrow it down?
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Anonymous Coward, 16 May 2014 @ 7:57am

Why didn't they take it to FISC? I hear that court never turns down a governmental request.
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Anonymous Coward, 16 May 2014 @ 7:59am

Re:
Not their jurisdiction. But even so, that would just re-affirm the public's view.
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Anonymous Coward, 16 May 2014 @ 8:06am

What a bummer the Constitution must be for these criminals with badges.
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Anonymous Anonymous Coward, 16 May 2014 @ 8:10am

Judge Shopping
Seems to me that the court system should just open The Warrant Mall of America. Put all the magistrate judges in separate kiosks, with a money changer down the way, maybe next to the food court. Then, the DoJ could do their judge shopping in a clean, safe, family friendly environment. They could even have weekly promotions, where they line all the judges up and auction warrant applications to the highest bidders.

Now, where might we put that...
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David, 16 May 2014 @ 8:17am

2out, 48 to go?
Last time I looked, D.C. did not count among the 50. So it's more like 49 to go.
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Anonymous Coward, 16 May 2014 @ 8:18am

Re: Judge Shopping
Mall of America
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David, 16 May 2014 @ 8:18am

Re: Re:
What skin off the government's nose is the public's view?
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John Fenderson (profile), 16 May 2014 @ 8:37am

Re: 2out, 48 to go?
Do possessions count? I believe there are also 7 US possessions (although all but two are uninhabited, if I remember right, so let's just count those). If so, then there are 51 to go.
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Michael, 16 May 2014 @ 8:46am

Judge Shopping
Judges could really open up the judge shopping market by ensuring there is a good secondary "used judge" market where people could sell judges they no longer needed.

The initial cost of a judge may not seem nearly as bad if you knew you could get some of the investment back by selling them later.
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Michael Donnelly (profile), 16 May 2014 @ 8:51am

Re: Judge Shopping
I don't think the "used judge" market is going to work.

The last time I checked, when these guys are judge shopping, they are only licensing their purchases. They're not real sales subject to section 109 of the Copyright Act, so selling a used judge is copyright infringement.

I think something like an iWarrant store might do better in the market, since it can act as a clearinghouse between the licensed judges and the government customer.

The only problem with that is I know the judges don't like selling their orders on a per-paragraph basis, but that's how the market is trending.
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Reality bites, 16 May 2014 @ 8:57am

Why hasn't the traitor doing the judge shopping been put on trial.
Time to take the trash out and bury it.
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Anonymous Coward, 16 May 2014 @ 10:13am

Re: Re: Judge Shopping
1st sale doctrine should apply to judges, too.
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Berenerd (profile), 16 May 2014 @ 10:31am

Re: Re: Judge Shopping
They should have an app for that...
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Pixelation, 16 May 2014 @ 10:47am

Can the second, or later, judge force them to go back to the first judge?
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kenichi tanaka (profile), 16 May 2014 @ 10:47am

The government may have to take "another run at this warrant in front of Judge Facciola"? Yeah, I'd like to be in court when that happens, especially when Judge Facciola discovers that the government tried to submit the same warrant request in another court in another state.
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Ninja (profile), 16 May 2014 @ 10:58am

Re: 2out, 48 to go?
Whatever it is ;)
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Anonymous Anonymous Coward, 16 May 2014 @ 11:20am

Re: Re: Re: Judge Shopping
Using and NSA written API?
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Anonymous Anonymous Coward, 16 May 2014 @ 11:21am

Re: Re: Re: Re: Judge Shopping
an, I meant an dangit.
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Anonymous Coward, 16 May 2014 @ 2:17pm

Where to try next
I'm thinkin' east Texas...
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Citizen 4 Citizens, 17 May 2014 @ 8:22am

Overly broad identification
[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

[W]ho in the government is attempting by judge shopping to usurp the 4th amendment of the US Constitution? Are these elected officials or just their teams of lawyers? Let that become public knowledge so they can't hide their questionable acts behind anonymity.

Let the government of the people by the people for the people prevail.
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LMAO, 17 May 2014 @ 9:00am

This is all crap propaganda, did everyone miss Edward Snowden?They can and do spy on whoever they want without warrents, Glennegreenwald.net
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richard40 (profile), 19 May 2014 @ 8:28am

I think their should be a regulation to deter this sort of forum shopping. Perhaps require that if the gov has a warrant request turned down by one judge, if they go to another with a similar warrant, they must tell the new judge about the warrant denial by the old judge, so the new judge can look at the reasons it was turned down.
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bobby b, 3 Mar 2015 @ 11:39pm

My favorite part?

Where the judge tells us that Google claims to fight overbroad warrants, but that in his three years on this bench, in their hometown, he's never seen them fight one single application.

I hope Google doesn't just skate on this one.
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