Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
On Appeal Mixed Outcome
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In the United States, it is well established legal precedent that search warrants must describe with particularity the items to be searched and the things to be seized and that general, overbroad warrants are not allowed. In this Memorandum Opinion and Order, Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia held that the government must be specific when seeking search warrant applications for electronic records.
In 2014, Magistrate Judge Facciola presided over the pre-trial matters in an ongoing investigation regarding misconduct by a defense contractor. Specifically, the defense contractor was being investigated for solication and receipt of kickbacks and conspiracy under 41 U.S.C. § 8702 and 18 U.S.C. § 371, respectively. As the Magistrate Judge noted in one of his orders, “the details of the investigation . . . are irrelevant.”
Several of the pretrial matters Magistrate Judge Facciola oversaw included applications for search warrants of electronic records. Specifically, the Department of Justice officials completing the investigation wanted to seize and search essentially all electronic data related to several Apple e-mail accounts used by the contractors. As the government’s applications stated, the attorneys pursuing the case requested not only e-mails but also address books, pictures, files, and communication between the account holder and Apple.
Apparently, by the time of the Order in question, dated March 7, 2014, the court previously had taken issue with many similar applications the government filed. Specifically, in those prior applications, Magistrate Judge Facciola had made several key revisions to the application. For example, while the government wanted all information related to an account whether or not it was actually relevant to the charges being brought, the court ruled that only relevant data could be seized and stored. In those prior orders, Magistrate Judge Facciola also criticized the government for its overly broad applications and ordered all future applications to comport with Fourth Amendment search and seizure standards.
The government failed to take these prior Orders to heart and instead kept filing applications for search warrants that had the same boilerplate language that the court had already criticized. In this Order, the Magistrate Judge found that the court would no longer be making these suggestions and revisions and instead held that if the application was inadequate, it would be denied in whole without prejudice.
After a detailed discussion of the application’s content and format, Magistrate Judge Facciola found multiple grounds upon which to deny the application without prejudice.
First, the court criticized the numerous drafting errors in the application. Specifically, the court noted that despite the “laundry list” of requested electronic data related to the Apple e-mail accounts, the government never expressly stated in at least one part of the application that it wanted to review the e-mails sent to and from the account. The court thus found the request to be “confusing” to the electronic communications service provider it terms of what information needed to be disclosed. Alone, this lack of clarity would be enough to deny the application.
However, Magistrate Judge Facciola also found that serious constitutional issues prevented the application’s grant. The most basic tenet of a search warrant is that the government must have probable cause to search and seize specified property; without such probable cause, the search would not pass constitutional muster under the Fourth Amendment. In this instance, the government had established probable cause for only some of the information related to the accounts. While the Magistrate Judge noted that approximately three months of e-mails around the time the conspiracy and kickbacks were ongoing may have been relevant, the government did not have probable cause to search the other files. On this ground alone, again, the application could be denied.
Magistrate Judge Facciola addtionally found that several other reasons existed for denying the government’s application for a search warrant. Next, the court found that the government made no mention of what it would do with information obtained from the search that turned out to be irrelevant to the investigation. The court held that such a provision should have been included, and that it should have stated that all such irrelevant information would be destroyed. The lack of such a clause from the application also meant that the application must be denied.
The Magistrate Judge concluded by discussing some of the jurisprudence that shaped the law surrounding search warrants, especially Coolidge v. New Hampshire, 403 U.S. 443 (1971). Under that case, the Supreme Court of the United States held that “general” warrants are abhorred and that, instead, a warrant should be “carefully tailored” to its justifications. Thus, the place to be searched and items to be seized must be described with specificity. In the matter before the court, the application the government submitted was nothing more than a general warrant that would have permitted the government to search for items it had not established would lead to the prosecution of criminal activity. In legal parlance, this kind of search is deemed a “fishing expedition” and is disfavored at law.
Despite the court’s denial of the application, Magistrate Judge Facciola did provide the government with some helpful suggestions moving forward. First, he clarified the methods by which the government could conduct a constitutional search and seizure. For example, the government could search by keywords only, have an independent special master collect relevant information, or at least separate its own attorneys into those conducting the search and those conducting the criminal investigation. One key revision the Magistrate Judge set forth is that it should be the electronic communications service provider (in this case, Apple) completing the “search,” not the government. Anything else, the court held, would be illegal “rummaging.”
In conclusion, Magistrate Judge Facciola denied the application for a search warrant, although he did so without prejudice, meaning that should a future application be properly drafted, the court would grant it. The court also advised the government to stop its reliance on a Department of Justice manual that stated the “boilerplate” language that should be contained in an application to search electronic records.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Technically, this Order expanded expression by mandating that the government specify exactly what information it was seeking in an application for an electronic search warrant. Under the language of the Order, no longer could the government set forth a blanket request for all the data related to an e-mail account without explaining the probable cause basis for that requested information.
However, on August 8, 2014, the United States District Court for the District of Columbia reversed Magistrate Judge Facciola’s Order in a Memorandum Opinion holding that the government’s application was, in fact, constitutional under the Fourth Amendment. Thus, the Magistrate Judge’s strong-worded admonishment of the government’s application, which he deemed overbroad, has now been expressly overruled by the district court.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Magistrate Judge’s Order, while not binding on any court, could serve as persuasive authority within both the District of Columbia Circuit as well as other state and federal circuits. (However, please note that the United States District Court for the District of Columbia reversed the Magistrate Judge’s decision. Magistrate Judge Facciola’s reasoning still could be utilized as persuasive authority by other courts not bound by the District Court for the District of Columbia.)
Let us know if you notice errors or if the case analysis needs revision.