iU.S. Magistrate Judge John M. Facciola in Washington D.C., who is a well-known expert in e-discovery, issued a Memorandum Opinion and Order dated March 7, 2014, containing a stunning rebuke of the Department of Justice. His order reveals that the Department of Justice has been routinely using over-broad search warrants for email. The warrants allow the Department to search and seize all email in a target’s email account from email providers. The warrants do not attempt to restrict the email seized or searched to the subjects underling the investigation. This is done secretly without the knowledge of the person whose email is seized. Moreover, the warrants contain no provision for the return or destruction of the emails seized. Judge Facciola held that these were General Warrants that violated the Fourth Amendment:
What the government proposes is that this Court issue a general warrant that would allow a “general, exploratory rummaging in a person’s belongings”—in this case an individual’s e-mail account. Coolidge, 403 U.S. at 467. This Court declines to do so.
Although the facts of the underlying investigation were redacted by Judge Facciola in his order, it is apparent from the order that the investigation pertained to alleged violations of the Anti-Kickback statute. It had nothing whatsoever to do with terrorism, but instead appeared to be a typical investigation of alleged improper business dealings with the government.
The Department of Justice has been ignoring Judge Facciola’s repeated warnings for months that he would stop issuing over broad warrants for email when presented to him for approval. In an unusual step Judge Facciola made his order public. The order was noticed by the NY Times who reported on the order in both the paper edition and online. Judge Rebukes Justice Dept. for Requesting Overly Broad Email Searches, Matt Apuzzo (NY Times, 3/19/14). Here is the NY Times introduction to Judge Facciola’s order:
A federal judge has admonished the Justice Department for repeatedly requesting overly broad searches of people’s email accounts, a practice that he called “repugnant” to the Constitution.
Here are key quotes from Judge Facciola’s order of interest to any lawyer, especially in-house counsel whose companies may often be subject to government investigations. Apparently these investigations frequently begin by secret searches and seizures of individual employees personal email accounts held by third-party Internet email providers. Only the Internet providers have notice of these warrants, and, so far at least, they have been reluctant to challenge the Department of Justice’s seizures of their customers’ email.
This Court is increasingly concerned about the government’s applications for search warrants for electronic data. In essence, its applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information. …
This Court is concerned that the government will see no obstacle to simply keeping all of the data that it collects, regardless of its relevance to the specific investigation for which it is sought. …
Despite the Court raising its concerns and urging the government to adopt a different approach, the government continues to ask for all electronically stored information in e-mail accounts, irrespective of the relevance to the investigation. …
[A]s the Supreme Court has also said, “[T]hose searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Id. To follow the dictates of the Fourth Amendment and to avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant application. …
By the Court’s count, it modified approximately twenty search and seizure warrants for electronic information during September and December 2013. It will no longer do so. Instead, any warrants that do not comport with the requirements of the Fourth Amendment will—like the present Application—be denied with an explanation of why they have been denied so that the government may have an opportunity to correct its defects. 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. By doing so, it is only submitting unconstitutional warrant applications.
I will be watching these issues carefully to see if the Department of Justice now responds and begins to limit its seizure and search of electronic information to data relevant to an investigation. Many think that the Department’s investigations of U.S. corporations, and U.S. citizens, are now inadequately constrained and often carried out in excess of proper constitutional limitations. See for instance the commentary in USA Today by Law Professor Jonathan Turley - Fire Eric Holder.
