Snuffing Out The Magistrate's Revolt: DC District Court Judge Roberts Grants Another Rejected Warrant Application

from the 'I-concur-with-my-own-finding-that-this-complies-with-the-4th-Amendment' dept

As we've been covering for the past few months, there seems to be an emboldened set of magistrate judges willing to push back against broad electronic search requests by the government. While it would be nice to see a stronger pushback originate somewhere closer to the top, it is (or was, it seems...) refreshing to see those on the lower rungs defend citizens' rights by rejecting what can only be termed "general warrants," the very thing that prompted the Fourth Amendment in the first place.

But it appears the rest of the judicial system is more interested in quelling what Scott Greenfield has memorably termed the "Magistrates' Revolt." As was noted here back in May, a DC district court judge overrode DC Magistrate John Facciola's refusal to bury a subpoena to Twitter under a gag order (Facciola actually went one step further and invited Twitter to respond in court). Judge Richard Roberts allowed the burial, utilizing a lot of "government knows best" rationale, even while pointing out the government was using the wrong venue to attempt an appeal of a magistrate's decision.

Another Facciola refusal, one that had twice crossed his desk has now been overridden as well. This warrant application -- seeking the entire contents of a person's .mac email account -- was summarized (twice) by Facciola as being "overly broad" for making no attempt to balance law enforcement interests with the expectation of privacy inherent to electronic communications.

The DOJ again appealed this decision and got the same judge -- Richard Roberts -- it got last time. And in spite of his earlier admonishment that the district court does not act as the appellate level for magistrate court decisions (a "mistake" the DOJ has made twice -- involving the same two judges and pointed out in the decision with the exact same footnote), Roberts again found that the government should generally be deferred to because it "knows best."

With very little preamble, Roberts announces that rules were followed and everything is on the level, but in the next 20 pages raises very few questions about the application of these rules to this specific situation, much less the digital reality of everyday life.

Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.

Just simply saying something "complies with the Fourth Amendment" doesn't magically make it so. Judge Facciola saw the same warrant application (twice) and came to a completely opposite conclusion. There's probably some middle ground that allows the DOJ to pursue this, but it's highly unlikely that Roberts (and the DOJ) are 100% right and Facciola is 100% wrong when it comes to the Fourth Amendment.

But Roberts is more of a business-as-usual judge. And business had gone on pretty much uninterrupted until recent months. When laying out the background of the case, Roberts nods to the Stored Communications Act, a particularly bad law that combines the worst parts of the Third Party Doctrine with being nearly out-of-date by the time it was codified in 1986.

As Roberts notes, the government did scale back its request after its first rejection, but only from "all email ever" to "all email from Jan. 14, 2014 going forward." While the government listed more specifics about its search and minimization efforts, Facciola still felt the DOJ was asking for more than it needed to achieve its aims.

While Facciola argued that the old way (grab everything and dig through it later) just doesn't mesh with the reality of the situation in terms of upholding the Fourth Amendment, Judge Roberts finds no issues with the government using warrants to engage in fishing expeditions.

Several courts have found the two-step procedure to be reasonable under the Fourth Amendment, provided that there is a valid warrant supported by probable cause. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (upholding government’s seizure of electronic data for a subsequent offsite search where there was a fair probability that evidence would be found on the defendant’s personal computer and other electronic devices); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a ‘sufficient chance of finding some needles in the computer haystack.’” (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999))).

And who does Roberts rely on to ensure that not too "haystack" is idly thumbed through during the search for "needles?" The government itself, the most trustworthy of the participants, at least in this judge's eyes. Roberts says the judicial system plays an important part in weighing the balance between the government's desires and personal privacy, but then states that if anything gets abused, it can always be fixed after the damage is done.

As the government argues in its challenge, law enforcement officers are provided with considerable discretion in determining how to execute a particular search warrant. The Supreme Court has explained that a search warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[.]” Dalia, 441 U.S. at 257.

That said, although law enforcement officers are afforded wide discretion in executing search warrants, “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978). Accordingly, the government will be afforded deference in deciding how to execute the search warrant, subject to later review by a court to determine whether the search complied with the Fourth Amendment’s reasonableness requirement.

So, everything's fine. The government can be trusted to only look at the stuff it's supposed to (even though it has access to plenty it doesn't need), and if it proves unworthy of that trust, the person whose rights have been violated can sleep well knowing a "later review" by the court will ensure no such abuse happens ever again. Until the next time.

Filed Under: 4th amendment, doj, john facciola, magistrate judges, richard roberts, warrants

DC District Court Overrides Judge John Facciola's Orders, Grants DOJ Request For Gag Order On Subpoenaed Companies

from the throwing-a-shoulder-into-the-government dept

It appears Washington, DC magistrate judge John Facciola is still making the government earn everything it asks for. Facciola is the judge who has been sending the government back to its desk to rewrite overly broad warrants seeking electronic data. In one of these cases, the government decided that it would rather go "judge shopping" all the way across the country rather than narrow its request, but was shot down by a California district court judge.

Facciola's orders are the basis for two memorandums recently issued by DC District Court Judge Richard Roberts concerning a case still mostly under seal as part of federal grand jury investigation. (The government also asked for these to be filed under seal, but that has obviously been declined.)

The government challenges two orders issued by Magistrate Judge John Facciola regarding the government's application for an order under 18 U.S.C. The first order invited Twitter, Inc. to intervene as a respondent and file a notice with the court on whether Twitter intended to be heard on the merits of the government's application. The second order instructed the government to file a public, redacted copy of its application and draft order.

Facciola also issued a similar order for Yahoo, the other company being subpoenaed. Both sets of orders invited the companies to challenge both the gag order preventing them from informing their customer(s) of the government's interest in their data. The government understandably wasn't thrilled with these orders and filed an appeal (of sorts) seeking to have Facciola's orders vacated. The District Court notes that the judicial system -- at this level -- doesn't exactly work this way.

On March 27, 2014, the government filed what it styled as an appeal from the magistrate judge's two orders regarding the government's application for an order under 18 U.S.C. The government moved to vacate the orders issued by the magistrate judge and moved for the district court to grant its application for a nondisclosure order. In addition, the government moved to seal the appeal and resulting order.

This faux pas by the government is explained a bit further in a footnote, as is the judge's rationale for treating this as an "objection," rather than an "appeal."

The government styles its challenge as an appeal, but the reference is a misnomer. With the exception of authority granted by Federal Rule of Criminal Procedure 58 concerning misdemeanor proceedings handled by a magistrate judge under 18 U.S.C. 3401, the district court does not exercise appellate power. See, United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011) ("The magistrate judge is not an inferior court, and the district court does not stand in an appellate capacity over the magistrate.") For the reasons explained below, the government's appeal will be considered as an objection to the magistrate judge's two orders.

Several more pages of judicial rationale follow, pointing out that grand jury deliberations are not subject to transparency and that Facciola erred by suggesting Twitter and Yahoo could either challenge the gag order or inform their customers. Judge Roberts points out that there's very little either company can offer in terms of judging the "merit" of the government's gag order, or the subpoena itself. Further discussions also defer to "government knows best" mentality, suggesting that any notification would "jeopardize" ongoing investigations. That this investigation is tied to a grand jury slams the door shut on any appeal of the gag order.

Because the express terms of 18 U.S.C. 2705(b) and applicable legal precedent governing public access to grand jury proceedings and materials do not support the first order inviting Twitter [and Yahoo] to intervene or the second order instructing the government to file a public, redacted copy of the non-disclosure application, the orders will be vacated.

So, the government gets its win, but it had to put in a little extra paperwork. It hoped these documents would be sealed as well, but you can't win them all, especially when memos in question contain only one redactable sentence each. If this is how the last few months have gone in Facciola's court, it's little wonder the government has been making road trips to other venues.

Filed Under: dc district court, doj, gag order, john facciola, richard roberts, subpoenas
Companies: twitter, yahoo