A district court judge is sending government prosecutors back to the drawing board when it comes to how they request warrants to search through suspects' emails and other electronic communications. In an opinion and order rejecting a warrant request earlier this month, DC Magistrate Judge John Facciola said that the standard format of digital search warrant applications has been consistently leading to overbroad and unconstitutional requests . "To be clear: the government must stop blindly relying on the language provided by the Department of Justice’s Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual," he writes. "By doing so, it is only submitting unconstitutional warrant applications."
"The government must stop blindly relying on the language provided by the Department of Justice."
Facciola intends to start drilling in the message too. For months now, the court has been modifying warrant requests so that they comply with the Fourth Amendment, but Facciola now says that all further violating warrant requests will be denied with an explanation as to why they aren't acceptable. Facciola draws on an earlier ruling to suggest how the government should be drafting its requests instead: rather than the government asking to perform the search itself, the court would like the company that hosts the suspect data to perform the search for them and then provide the results. The earlier ruling also suggests a potentially critical addition: that the government waive its ability to use the plain view doctrine, which allows for the seizure of other evidence it might see while performing a more specific search.
Should the court hold the government to these higher standards, it would go a long way for protecting electronic communications: though Facciola only intends to safeguard the Fourth Amendment, laws governing electronic data haven't been updated in decades and often enable broad searches — an issue that many have been trying to reform. In this case, the court used these higher standards to reject a warrant application to search a suspect's @mac.com email address because the request was too broad and may confuse Apple, the email provider, into returning more information that it should. The case involved a defense contractor under investigation for potentially accepting or soliciting kickbacks, though specifics were not disclosed.
As Facciola notes in his opinion, other courts have not found these lengths to be necessary for an electronic search warrant, but he says that the DC court sees "no reasonable alternative" than to require the service operator to perform the search instead of the government. So long as the proposed search methodology is specific and narrow, the court says that "having an electronic communication service provider perform a search ... seems to be the only way to enforce the particularity requirement commanded by the Fourth Amendment." In the case of emails, he says this is no different from asking a bank to look within a set of records for a few particular files. While other courts may not be in agreement that this is necessary, the order from DC's district court may well start to put a hiccup in how the government begins its search warrants, potentially reigning in their scope in the process.