Things hadn’t gone well for the Department of Justice with D.C. Mag. Judge John Facciola. Denying cloud warrants based on ex ante concerns of unconstitutionality, despite what the government, and even an academic, saw as a mandate to sign off under Rule 41(D)(1), here was a magistrate who just wouldn’t get with the program.
Gripe and resubmit though they might, or seek mandamus under the All Writs Act as they could, the government decided instead to take a different path following in a great American tradition. They went
judge shopping west to seek their future. West to Silicon Valley, home of Google and Cloud Servers, where they hoped to find a more tech savvy, and less constitutionally-bound, judge to sign their papers.
Instead, they parked their Conestoga wagon outside Magistrate Judge Paul Grewal’s courtroom. As much as they scored on the tech savvy side, their chagrin must have known no bounds when they learned that even out west, magistrate judges were familiar with the Constitution. In his opinion in In re: [REDACTED]@gmail.com (which will stand as a case name to be remembered, even though whoever actually has that email address will probably be a bit miffed), Judge Grewal refused to acquiesce to the east coaster’s demands.
But what about those computers that are not at a suspect’s home, but at a third-party cloud provider like Google? Following a standard format used by the Department of Justice, the government draws no distinction and commonly seeks approval for the same seize first, search second methodology whether the data of interest is local or remote…No defendant or defense counsel is present. Indeed, no defendant yet exists, as no case has yet been filed. There are no hearings, no witnesses, no briefs and no debate. Instead, a magistrate judge is left to predict what would or would not be reasonable in executing the warrant without any hard, ripe facts. This is hardly a recipe for success.
The thrust of the government’s argument is that if probable cause exists to seize and search an email account at all, then the magistrate judge is required to sign the warrant, regardless of the absence of limitations on seizing the haystack to find the needle. If the breadth or methodology of the warrant violates the Constitution, that’s something to be determined ex post (afterward) rather than ex ante (beforehand).
Because of Rule 41(D)(1), the government takes the view that it can take anything and everything it wants first and, after having and keeping it, sifting through it, seeing whatever there is to be seen, enjoying the fruits of the poisonous cloud, only then does a judge get to decide that it’s unconstitutional. Of course, by then, the damage is done, and there is no undoing it.
Magistrate Judge Grewal does not have a rubber stamp.
This brings the court to the second element worthy of discussion: the constitutionality of the warrant application. As an initial matter, in many ways, the application is remarkably unremarkable. As it does on most days in this court, the government seeks data in the files of an electronic communications service provider as part of an ongoing investigation.
But what of all the data associated with the account which supplies no such evidence whatsoever?
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.
This window into the pedestrian work of a Silicon Valley magistrate judge is both banal and shocking. The courthouse has become a search warrant factory for the government’s snatching its
little piece of the cloud, the part for which it has probable cause and whatever else it can get its hands on in the process. And this is an ordinary, daily occurrence. “Remarkably unremarkable,” two of the scariest words ever in an opinion.
It didn’t pass Mag. Grewal’s attention that the government only came to him after Mag. Facciola sent the government packing. Of course, Facciola’s multiple denials isn’t precedent, and despite the government having remedies to challenge the denial, there is nothing in the law prohibiting it from making as many warrant applications as it wants until it finds someone willing to sign off on a warrant that others have already rejected. But nobody likes to be sloppy seconds:
But there is a long-recognized presumption against duplicating court efforts — what some charitably call judge shopping.
Under such circumstances, it could appear that what the government has chosen to do instead is nothing less than come west looking for a better result.
Recently, the Washington Post had an article entitled, Low-level federal judges balking at law enforcement requests for electronic evidence, which has been characterized as the Magistrate’s Revolt. While Magistrate Judges may be on the bottom of the federal judicial food chain, it appears they may be our best hope to rein in the government’s efforts to seize it all and sort it out later. Hopefully, Article III judges are paying attention, and perhaps are a little ashamed of their own lack of gumption in giving the government anything it wants.
H/T Jim Tyre