U.S. Magistrate Judge Paul Grewal, Northern District of California (Jason Doiy)
SAN FRANCISCO — A Bay Area federal judge refused to let the government search a Google email account Friday and chided the Mountain View company for not living up to its pledge to push back against sweeping requests for user data.
U.S. Magistrate Judge Paul Grewal of the Northern District of California denied federal prosecutors’ application for a warrant for the Gmail account, finding the request overbroad and perhaps unconstitutional. The San Jose judge agreed in a six-page order that there was probable cause the Gmail account contained evidence of theft of government funds. But he found the government had put few limits on its request, not even narrowing down a time frame for the search. “The court is … unpersuaded that the particular seize first, search second proposed here is reasonable in the Fourth Amendment sense of the word,” he wrote.
Grewal was also troubled that prosecutors had not offered to return or destroy evidence that was not relevant to the investigation.
“This unrestricted right to retain and use every bit Google coughs up undermines the entire effort the application otherwise makes to limit the obvious impact under the plain view doctrine of providing such unfettered government access,” he wrote.
With his order, Grewal joins a chorus of magistrate judges vetoing sweeping searches of technology companies, a movement The Washington Post called the “Magistrates’ Revolt.” Championed by judges in Texas and Washington, D.C., the campaign gained momentum after the National Security Agency’s broad surveillance came to light, said Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation.
“We’re starting to see the magistrates pushing back,” he said.
Advocates said they could not recall any other orders of the kind issued by magistrates in the Bay Area. But the trend is difficult to track as the public has little visibility into criminal investigations before cases are filed. Grewal’s order is one of relatively few that are published.
Linda Lye, a staff attorney at the American Civil Liberties Union, said she hopes Grewal’s order will spur Silicon Valley companies to scrutinize government requests more closely.
“It would really assist the process of constitutional lawmaking if judges have the benefit of something representing an adversarial process,” Lye said.
Grewal prodded Google Inc. to take a more active approach in his order.
“While Google has publicly declared that it challenges overbroad warrants, in three-plus years on the bench in the federal courthouse serving its headquarters, the undersigned has yet to see any such motion,” he wrote.
The government’s request was previously shot down by U.S. Magistrate Judge John Facciola in Washington, D.C., who has emerged as a particularly tough audience for such applications.
“Under such circumstances, it would appear that what the government has chosen to do instead is nothing less than come west looking for a better result,” Grewal wrote.
Justin Weitz, a Washington-based assistant U.S. attorney listed on the docket, did not immediately respond to a request for comment.
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