[Infowarrior] - Low-level federal judges balking at law enforcement requests for electronic evidence

[Richard Forno]

Low-level federal judges balking at law enforcement requests for electronic evidence
By Ann E. Marimow and Craig Timberg

Judges at the lowest levels of the federal judiciary are balking at sweeping requests by law enforcement officials for cellphone and other sensitive personal data, declaring the demands overly broad and at odds with basic constitutional rights.

This rising assertiveness by magistrate judges — the worker bees of the federal court system — has produced rulings that elate civil libertarians and frustrate investigators, forcing them to meet or challenge tighter rules for collecting electronic evidence.

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.

“For the sixth time,” Facciola wrote testily, using italics in a ruling this month, “this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”

The Justice Department declined to comment for this article, although it said in an appeal to a Facciola ruling this week that his position was “unreasonable,” out of step with other judges and would slow searches of the e-mails of criminal suspects “to a snail’s pace.”

Facciola, 68, a former state and federal prosecutor known as “Fatch” around the limestone E. Barrett Prettyman Federal Courthouse a block from the Mall, remains an outlier among the 500-plus federal magistrates nationwide, say legal experts.

Yet he is part of a small but growing faction, including judges in Texas, Kansas, New York and Pennsylvania, who have penned decisions seeking to check the reach of federal law enforcement power in the digital world. Although some rulings were overturned, they have shaped when and how investigators can seize information detailing the locations, communications and online histories of Americans.

“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.”

‘Magistrates’ Revolt’

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.

Central to the cases before magistrate judges has been the Fourth Amendment’ s prohibition of unreasonable search and seizure. Inspired by the Founding Fathers’ unhappy memories of the aggressive tactics by British soldiers, it has been continually reinterpreted through more than two centuries of technological change.

Such issues are increasingly urgent in an era when a typical smartphone carries video clips, e-mails, documents, location information and enough detail on a user’s communications to allow authorities map out a nearly complete universe of personal relationships. The Supreme Court plans to hear two cases next week on issues related to how police search cellphones after arrests.

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.

Published opinions by magistrates are relatively rare, making it hard to track shifting attitudes toward government data requests. But legal experts say the overall level of skepticism from magistrates is on the rise.

“In talking to magistrate judges, they are saying, ‘I’m not writing anything. I’m just saying no,’ ” said Brian L. Owsley, a former magistrate judge now teaching at Texas Tech’s law school.

Magistrate Judge Stephen W. Smith, based in Houston’s federal court, is often credited with touching off the insurrection among his colleagues with a 2005 ruling in which he denied a government request for real-time access to the detailed location information that cellphones emit. He ruled that requiring a telecommunications company to provide subjects’ ongoing data amounted to placing a tracking device on them — something permitted only with the issuance of a search warrant, which the government had not requested.

The distinction is crucial: Search warrants require that the government show probable cause that a crime was committed and that the search will turn up evidence that helps prove the crime. Other magistrates had routinely allowed cellphone location data to be seized using court orders, which require the government to meet a less stringent standard of showing only that the information is “relevant and material” to an ongoing investigation.

“We understand law enforcement has a difficult job, and we don’t want to blow an investigation or tip off a suspect,” said Smith, who has known Facciola for years through their shared work for an online legal journal. “On the other hand, he feels, like we all do, the special responsibility to safeguard the Fourth Amendment. . . . We are the ultimate backstop.”

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.

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http://www.washingtonpost.com/local/crime/low-level-federal-judges-balking-at-law-enforcement-requests-for-electronic-evidence/2014/04/24/eec81748-c01b-11e3-b195-dd0c1174052c_story.html


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