U.S. Magistrate Judge Paul Grewal, Northern District of California (Jason Doiy / The Recorder)
SAN FRANCISCO — A Bay Area judge has hit the brakes on a government request to indefinitely delay notifying a suspect that his vehicle is being tracked.
Magistrates routinely allow federal agents to delay informing targets that their movements are being monitored if the investigation could be jeopardized. But U.S. Magistrate Judge Paul Grewal wrote in a three-page order issued Wednesday that throughout 2013, law enforcement officers apparently failed to inform suspects of the tracking, even after the deadline passed.
Now, the government has asked Grewal for a new privilege it calls “prospective delayed notice authorization.” With this “twist,” Grewal wrote, “the already lapsed period of delayed notice would remain unauthorized, but the government would remain free not to notify the target going forward.”
Bewildered as how to handle the request, Grewal invited federal prosecutors, the federal public defender and other interested parties to submit briefs on how he should proceed.
“Does the court have the authority to grant such a ‘prospective’ order? Does it matter if the government’s failure to tender notice as ordered was a good-faith mistake?” Grewal asked. “The court’s own efforts to find guidance in the case law did not yield much.”
Grewal’s order amplifies a conversation that is playing out in other courtrooms in the Northern District of California and across the country. After the National Security Agency’s broad surveillance was exposed last year, judges from Texas to Washington, D.C., began publicly vetoing sweeping government searches in a movement that The Washington Post dubbed the “Magistrates’ Revolt.” This summer, U.S. Magistrate Judge Nathanael Cousins of the Northern District invited briefing about whether the government must get a warrant to obtain information about suspects’ locations from cellphone towers. His request followed Grewal’s refusal to allow the government to launch a broad search of a suspect’s Gmail account.
A spokeswoman for U.S. Attorney Melinda Haag declined to comment on Grewal’s order. Federal Public Defender Steven Kalar did not immediately respond to a request for comment.
Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, said the advocacy group will likely file an amicus brief in the case. He said the government’s failure to meet notification deadlines in criminal investigations could be a dangerous slide.
“The government can’t just track a person forever and not bring a criminal charge and not notify them that they’re under investigation,” he said. “At some point, the government has to fish or cut bait.”
Magistrate judges are perfectly positioned to start a conversation about what the remedy should be, he said.
“It’s great for judges to say, ‘Hold on. Slow down. I want to make an informed decision,’” Fakhoury said.
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