Prosecutors Assailed for Broad Asks

Prosecutors Assailed for Broad Asks Photo: Diego M. Radzinschi / NLJ

Prosecutors in Washington have repeatedly filed overly broad search warrant requests for electronic data that fail to balance government interests against the public’s privacy expectations, a federal magistrate judge ruled this month in a rare rebuke.

The judge, John Facciola, refused to sign a search warrant application targeting the contents of an email account hosted by Apple Inc. Prosecutors sought three months of electronic records in a kickback investigation involving an unidentified defense contractor.

Judges around the country more often are confronting the scope of Fourth Amendment protections in the digital universe. The question Facciola addressed: Should prosecutors get to see a person’s inbox — everything, say, within a date range — when only certain information might be relevant to an investigation? Facciola said no.

“This Court is increasingly concerned about the government’s applications for search warrants for electronic data,” he wrote. “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.”

The government, Facciola said, failed to heed his “repeated prior warnings about the use of formulaic language and overbroad requests that — if granted — would violate the Fourth Amendment.” He referred to his Nov­ember ruling on a proposed search of a Facebook account, when he warned prosecutors to apply “stricter search parameters” in future applications or run the risk of having a request denied.

“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,” Facciola wrote on March 7 about the Apple search.

Court papers in the pending criminal investigation are sealed. It was not ­immediately clear whether the government refiled a more narrowly tailored search-and-seizure application. Peter Carr, a spokesman for the U.S. Depart­ment of Justice, said only that prosecutors would “respond at the appropriate time in court.”


One possible avenue to minimize the chance that government lawyers would review off-limits electronic data, Facciola said, would be to let service providers look for information — based on keyword searches — relevant to the investigation.”E-mail providers like Apple are technologically sophisticated actors; in fact, one of Apple’s main competitors, Google, has created an entire business model around searching the contents of e-mail to deliver targeted advertising, and it has done so for a decade,” he wrote.

Granting search authority to service providers would present its own challenges, said Marc Zwillinger of Wash­ing­ton’s ZwillGen, which focuses on privacy and security work. It could tighten existing tensions between Internet service providers and the government, he said.

“For providers to do the type of searching by keyword that is contemplated by the decision, it will likely become a manual and time-consuming exercise to review the targets’ emails and could be viewed as turning the provider into an investigator,” Zwillinger said.

Magistrate and district judges have shown no uniformity in ruling on the question Facciola confronted. For example, a federal judge in Maine ruled in 2011 that the “Fourth Amendment does not require the ­government to delegate a ­prescreening function to the Internet service provider.” In January, U.S. District Judge Julie Robinson in Kansas denied a motion to suppress a warrant that targeted an email account hosted by Yahoo! Inc.

“[N]othing in the Fourth Amendment requires law enforcement to cede to non-law enforcement their power to search and determine which matters are subject to seizure,” Robinson wrote. “The alternative of having Yahoo technicians search for the information requested would have placed an unreasonable burden on Yahoo and it would be less effective than allowing government agents to determine the relevance of particular emails.”

Reaching a different conclusion, David Waxse, a magistrate judge in Kansas, last August denied five applications for search warrants targeting information from companies including Google Inc., Verizon Internet Services and Yahoo.

“The warrants as currently proposed give the government virtual carte blanche to review the content of all electronic communications associated with the accounts and fail to adequately limit the discretion of the government-authorized agents executing the warrants,” Waxse wrote. “The absence of any limitations in the warrants on the government’s review of the content of all email communications obtained from the Providers is in violation of the Fourth Amendment.”

Stephen Ryan, who leads the government-strategies practice at McDermott Will & Emery, said Facciola’s ruling received wide attention — and not only within legal circles. “Technology policy guys in Silicon Valley were sending me copies of his opinion,” Ryan said.

Facciola, Ryan said, delivered a “classic” message to prosecutors: “He told the government to stop doing overbroad searches — even told them how to make their searches comport with his reading of the Constitution and the prosecutors failed to heed his advice.”

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