Magistrate Judges Emboldened By Snowden, Pushing Back On Overly Broad DOJ Requests

from the good-for-them dept

A couple weeks ago, we wrote about how the judiciary was finally pushing back on overly broad and vague warrant requests from the DOJ, with magistrate judge John Facciola leading the way. That was based on a Wall Street Journal article highlighting how magistrate judges like Facciola and David Waxse have been pushing back much more regularly on requests. The Washington Post has now written a very similar article (though, like most stuck up mainstream publications, it never mentions the WSJ article that beat it to the punch) that is worth reading as well. While it repeats much of the same story from the WSJ one, it also adds some interesting details. The basic story is basically the same. Facciola and others have been pushing back steadily on requests:

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

The article also notes that it's very likely that the Ed Snowden revelations have played a big role in the sudden uptick in magistrate judges pushing back:

The seeds of what legal observers have dubbed “the Magistrates’ Revolt” date back several years, but it has gained power amid mounting public anger about government surveillance capabilities revealed by former National Security Agency contractor Edward Snowden. Judges have been especially sensitive to backlash over the Foreign Intelligence Surveillance Court, which made secret rulings key to the growth of the surveillance programs.

A lawyer quoted in the article notes that the judges are now realizing that if they approve a bogus warrant, which later becomes public, it may now become an embarrassment:

“There’s a newfound liberation to scrutinize more carefully,” said Albert Gidari Jr., a partner at Perkins Coie who represents technology and telecommunications companies. “They also don’t want to be the ones who approve an order that later becomes public and embarrassing. . . . Nobody likes to be characterized as a rubber stamp.”

Of course, the inference there is depressing, if unsurprising. Back when they could work in relative secrecy, judges were a lot more willing to just go along with law enforcement. We've been saying since the beginning that transparency, sunlight and accountability are important components in maintaining the Constitution, and this newfound backbone from the judiciary certainly seems to suggest that's true. It also shows just how far-reaching the impact of Snowden's actions have been. It's not just about the NSA, but it's priming the key folks who make the federal judiciary function, the magistrate judges, sit up and pay more attention.

The other tidbit of information, is that the magistrate judges apparently all have a mailing list where they discuss some of this stuff, suggesting that this growing "revolt" (if you can call actually following the Constitution a "revolt") may continue to spread:

Magistrate judges, who do much of the routine work of the criminal justice system, influence each other through conversations at judicial conferences and through the federal e-mail system, which allows any magistrate judge to query all others on a vexing legal question with a single click of the mouse.

Perhaps even more interesting is that one of the magistrate judges handling these issues has even designed a joke t-shirt that he sends to any judges who have to rule on warrants concerning mobile phone information:

Tackling such issues, even in the face of possible reversal by higher courts, has become something of a badge of honor among some magistrates. Judge James Orenstein of Brooklyn, a former federal prosecutor who also wrote an early, influential ruling on cellphone location data, once joked with Smith that they would soon have enough like-minded magistrates to form a bowling team, Smith recalled.

That prompted Orenstein to design shirts featuring the image of a bowling ball rolling toward a cellphone and nine cell towers arranged in a triangle like a set of bowling pins. Above the image it read, “CSI: Cell Site Information.” Below it read, “Bowling for Dialers.”

When other magistrates write opinions on the issue — regardless of which side they take in the debate — they are offered one of the shirts.

While a bit more jokey than you'd normally expect from some judges, things like this certainly help remind the judges that these kinds of requests are important to pay attention to, and aren't "just another" request to rubber stamp. That's a good thing.

While the article notes that the government is starting to more aggressively appeal these magistrates (and some federal judges have been overturning them) it's still good to see the magistrates stepping up and tackling this issue.

Filed Under: 4th amendment, david waxse, doj, ed snowden, john facciola, magistrate judges, warrants

Judicial Branch Finally Acting As A Check Against Government Overreach

from the the-government's-been-skating-for-far-too-long dept

At long last, there finally seems to be a recognition by members of the judicial branch that they are, in fact, there to provide checks and balances against government overreach. We've already covered the recent orders by Magistrate Judge John Facciola, who has twice sent the government back to fix its overly broad warrant requests seeking access to email accounts and cell phone content. (This is tempered somewhat by another Facciola decision, which declared the law enforcement agency in question didn't need a search warrant for a supposedly "abandoned" phone.) Facciola isn't the only judge pushing back against the government's vague warrant requests, however.

In the past year, U.S. magistrate judges John Facciola in Washington, D.C., and David Waxse in Kansas City, Kan., have rejected or modified a number of applications for warrants to search people's emails and other electronic communications at Internet firms such as Google Inc. and Yahoo Inc.

The rulings go against the grain of a federal judiciary that has generally approved them, according to current and former law-enforcement officials. They also come against the backdrop of a legal and political debate over the scope of government surveillance that has raged since the National Security Agency's bulk collection of phone records was revealed last summer.

At issue is the Justice Department's two-step process of obtaining all emails and other electronic information in the accounts of a person under investigation, and then using names and keywords to sift through it in hopes of finding evidence of wrongdoing.

The judges have ruled the government needs to refine its requests to comply with the Fourth Amendment, which protects against unreasonable searches.

This has been the government's process for years: obtain everything and keep whatever is deemed "relevant" to the case. Both of these judges appear to realize that they are the last line of Fourth Amendment defense between the government and the public. Presumably, the Snowden leaks have played a part in this altered mindset. As both judges have pointed out in their orders, what the government has routinely sought is unbounded access to communications via unconstitutional warrants.

These two have suggested an alternate route, if the government can't manage to operate within the constraints of the Constitution.

Both judges have suggested Internet service providers and other Web firms could do their own searches based on specific guidance from the Justice Department, and turn over only the information that appears relevant to an investigation. They have also proposed systems in which a court-appointed official or others could perform the initial search, providing a buffer between investigators and bulk data.

Of course, the government thinks these are terrible ideas.

"I don't think ISPs or email providers have the institutional competence to conduct the searches of their customers for evidence of crimes," said Neil MacBride, a former U.S. attorney in Virginia who described the magistrate judges' rulings as "outliers."

Maybe. Maybe not. But it's clear the government is no better than the private sector at performing targeted searches. Instead, it simply demands everything and expects to be trusted to only take a look at what is pertinent. Despite the fact that the government routinely asks (or rather, expects) the judicial branch, along with those defending the accused, to simply trust it with petabytes of someone's personal data, it seems completely unwilling to trust a private company with fulfilling searches for relevant data on its behalf.

The days of the government simply saying "it's complicated" and running broad warrant requests past technically-incompetent judges might finally be numbered.

Judge Waxse said he believed more people would come around to his view if they better understood recent technological advances and how service providers operate. "What Facciola and I are saying is, use what is now developed, and you can comply with the Fourth Amendment," he said. "There are too many lawyers and judges who don't have a clear grasp of how it all works."

This is also part of the problem. Far too often, technically-ignorant judges have credulously accepted the government's arguments because they don't have the knowledge to challenge these assertions. They could seek the input of those who can parse the technological demands, but rather than do so, this crucial part of the system of checks and balances has simply allowed the government to portray its circumvention of the Fourth Amendment as unavoidable.

Following the revelations of the last several months, including documents showing the NSA misrepresented its bulk records collections for nearly three years straight, the government has been shown it cannot be trusted with unlimited access to people's data and content. Hopefully, this pushback from the judicial branch will become the new standard.

Filed Under: 4th amendment, courts, david waxse, doj, john facciola, overreach, surveillance, warrants