U.S. District Chief Judge Richard Roberts, right, overturned Magistrate Judge John Facciola's refusal to grant a search warrant for a mac.com email address.
U.S. District Chief Judge Richard Roberts, right, overturned Magistrate Judge John Facciola’s refusal to grant a search warrant for a mac.com email address. (Photos: Diego M. Radzinschi/NLJ)

A federal judge in Washington on Friday ruled prosecutors should be allowed to search the entire contents of an email account, overruling a magistrate judge’s concerns that the request was too broad and violated privacy rights.

U.S. District Chief Judge Richard Roberts found the government’s search-warrant application did not violate the Fourth Amendment. Earlier this year, U.S. Magistrate Judge John Facciola denied the application, finding the government used “formulaic language” and made “overbroad requests.”

Prosecutors sought access to an email account hosted by Apple Inc. as part of an investigation into an alleged government kickback scheme involving a defense contractor. The contractor wasn’t named in court filings.

Facciola expressed concern about the two-step process prosecutors would use to access the information: Apple would be required to turn over the entire contents of the email account, and then prosecutors would search for information under the terms of the search warrant. The dispute was one of several cases this year in which Facciola pushed back against prosecutors’ efforts to search electronic records.

Roberts disagreed that the two-step process amounted to an overbroad search. He said the search warrant would restrict the information prosecutors could actually seize from the email account. One alternative Facciola proposed—having Apple do the search—could “present nettlesome problems,” Roberts said.

The judge wrote:

“To begin with, nongovernmental employees untrained in the details of the criminal investigation likely lack the requisite skills and expertise to determine whether a document is relevant to the criminal investigation. Moreover, requiring the government to train the electronic service provider’s employees on the process for identifying information that is responsive to the search warrant may prove time-consuming, increase the costs of the investigation, and expose the government to potential security breaches.”

Roberts acknowledged that giving law enforcement officials broad access to electronic communications could increase the risks to individual privacy rights. But the “practical realities” of searching electronic records meant that the government might have to look at information that fell outside the scope of a search warrant to decide what was relevant, the judge said.

“Given these competing interests, courts must strike the proper balance between ensuring that the government’s ability to effectively and efficiently investigate and prosecute crimes is implemented and assuring respect for individuals’ Fourth Amendment rights,” Roberts wrote.

Roberts rejected an attempt by a civil liberties group, the Electronic Frontier Foundation, to present a brief addressing the Fourth Amendment issues at play. He said Facciola’s opinions already included a “comprehensive discussion” of those privacy issues.

“Furthermore, given that the government’s application for a search warrant complies with the Fourth Amendment, there is no apparent need to discuss, at least at this stage, the Fourth Amendment’s application to various emerging technologies generally,” Roberts wrote.

Peter Carr, a spokesman for the Justice Department, said in an email that the department is “pleased the court ruled that the search warrant complies with the Fourth Amendment and that the procedures for executing the warrant are reasonable and permissible under the federal rules and case law.”

Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said in an email that they were disappointed with the outcome:

“We’re troubled by the government’s broad requests to search and seize digital evidence and were glad to see Judge Facciola think about ways to minimize privacy intrusions. I fear Judge Roberts opinion goes the other way and encourages broad government searches of emails and other digital papers. It’s important to have an ongoing discussion about these issues and hopefully this won’t deter other judges from holding the government accountable to their Fourth Amendment obligations and issuing written opinions explaining their reasoning in either granting or denying a search warrant.”

Updated at 4:53 p.m.

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