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Federal Judge Slams Govt Request for Email User Data as 'Repugnant to the Fourth Amendment"

Sharply worded opinion criticizes government's continued "overly broad warrants"

Andrea Germanos

A federal judge has delivered a harshly worded ruling that admonishes a government request for a warrant to search a user's email address, saying that it would be "repugnant to the Fourth Amendment" to issue it, and urged the government to stop submitting "unconstitutional warrant applications."

In its request to the US District Court for the District of Columbia, the government had sought for Apple to turn over all of a @mac.com user's records including "including address books, contact and buddy lists, pictures, and files."

In his opinion delivered earlier this month, Magistrate Judge John Facciola denied the request, writing, "It is evident from the sealed affidavit that the government is really after e-mails from December to the present."

As Shayana Kadidal, senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights, explained to Common Dreams, "Something like this would never pass muster in the physical world -- like allowing the government to seize all your books in order to find a few pages of notes you'd scribbled in the margin of one specific title."

To issue such a warrant would be "repugnant to the Fourth Amendment," Facciola wrote.

Facciola writes that the request in question follows a pattern in which the government's "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 continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy e-mail account holders have in their communications."

"[It] persists in its entitlement to the entire e-mail account, without suggesting how the items that may be seized because there is probable cause to believe that they are evidence of a crime can be segregated from those that are not."

Without an order that requires that contents and records of electronic communications that are not relevant to an investigation be returned or destroyed, "this Court is concerned that the government will see no obstacle to simply keeping all of the data that it collects, regardless of its relevance to the specific investigation for which it is sought."

"Judge Facciola’s ruling only drives home the necessity of broad surveillance reform."
— Matthew Kellegrew, Bill of Rights Defense Committee
Facciola wrote that the government must stop "blindly relying on" a 2009 Department of Justice manual, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations.

Continued reliance on that document to back up its requests means the government is "submitting unconstitutional warrant applications," and such requests will be denied, Facciola wrote.

The ruling "is only binding in front of this one judge in this one district," Kadidal added. This is a point echoed by Matthew Kellegrew, legal fellow with the Bill of Rights Defense Committee, who told Common Dreams, "As a civil liberties activist, I’m very pleased at the excellent decision by Judge Facciola but as a lawyer I’m troubled at the potential for a different judge to reach an opposite result."

"The judiciary needs guidance from Congress on how to apply the Fourth Amendment in a fair, uniform way. A bill like The USA Freedom Act that would impose transparency and oversight measures on bulk surveillance conducted by the NSA would be a good start in reforming the unconstitutional practice of introducing evidence collected in bulk, without probable cause, from being introduced in courts of law," Kellegrew stated.

"Judge Facciola’s ruling only drives home the necessity of broad surveillance reform," he added.

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