DOJ Challenges Denial of Search Warrant for Email Account

DOJ Challenges Denial of Search Warrant for Email Account Photo: Diego M. Radzinschi/NLJ. Magistrate Judge John Facciola turned down a government search warrant to review information in an email account hosted by Apple Inc.

Federal prosecutors are pushing back against a magistrate judge who has repeatedly denied search warrants for electronic information that he says run afoul of the Fourth Amendment.

The U.S. Department of Justice on Monday appealed U.S. District Magistrate Judge John Facciola’s denial of a search warrant for an Apple email account. Prosecutors defended a two-step process that involved asking Apple Inc. to turn over the entire contents of the email account, and then searching for information they had probable cause to seize. The Wall Street Journal first reported the appeal Tuesday.

Facciola, a federal magistrate judge in Washington since 1997, has criticized recent search warrants involving electronic information as overbroad. Under the two-step process the government wanted to use in the Apple case, prosecutors would effectively seize an entire email account, including information it lacked probable cause to take, Facciola wrote.

The judge denied search warrants in a series of criminal investigations, including the Apple matter, beginning in March.

L. Wade Weems, a trial attorney in the Justice Department’s fraud section, wrote in the appeal that the two-step process was reasonable. Law enforcement can only decide if a document falls under a search warrant by reviewing it, Weems said, and the two-step process only meant officers didn’t have to fly to Apple’s offices and do the review on-site.

The government opposed Facciola’s proposal to have Apple search the email account instead as “unworkable.”

“Executing a search warrant is not a ministerial procedure that can be delegated to untrained, nongovernmental personnel,” Weems wrote. “The United States cannot hire, supervise or fire service provider employees; thus, the magistrate judge should not force it to trust them with the sensitive facts of criminal investigations.”

Under court rules, a federal trial judge will review Facciola’s decision. From there, the case could be appealed to the U.S. Court of Appeals for the D.C. Circuit.

The underlying criminal investigation remains under seal. According to Facciola’s rulings, which were made publicly available, prosecutors are investigating possible violations of federal antikickback laws involving a defense contractor.

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman.

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