Magistrate Judge Grewal: No Manifest Destiny For DoJ

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] (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



8 thoughts on “Magistrate Judge Grewal: No Manifest Destiny For DoJ

  1. Marc R

    Thanks for posting this, Scott. It’s a nice change of pace to read of a judge calling the government out…even if his true reasons may have been akin to a girl refusing to a date a guy upon hearing her co-worker rejected his advances an hour beforehand.

  2. John Hawkinson

    Hey, it is just me or is Judge Grewel’s filing (ecf.cand’s 5:14-mj-70655-PSG Document 1) missing a page, specifically page 3 of 7? While p.1 is endorsed “Redacted for Public,” I assume that just refers to the case caption and not the entirety of page 3, given that page 2 cuts off in mid-sentence?

    Has anyone pursued this? I guess I can do so with Judge Grewal’s [criminal?] docket clerk on Monday…but I don’t want to be pointlessly duplicative. Thanks.

    1. SHG Post author

      Damn good question. I’m working on it.

      Edit: Learned that there is a page 3, nothing particularly consequential on it, but for reasons unknown, it’s not part of the filed copy of the order. Unfortunately, I’m unable to get a copy of the page at this time.

  3. Orin Kerr

    I don’t understand Grewal’s claim of “judge shopping” for two reasons:

    1) The Facciola case was a case seeking a warrant from Apple; this is a case seeking a warrant from Google. Apple and Google are different companies. So these are different cases. Grewal says that its a “similar application” as the one Facciola saw, but not that it’s the same case. If that’s right, why is DOJ doing something wrong by following its longstanding application policy, which seemingly every magistrate judge nationwide but one has allowed? Is Grewal taking the view that if one magistrate judge adopts an outlier view about what the Fourth Amendment requires, DOJ must change its policy nationwide unless and until it can persuade that one magistrate judge to change his mind?

    2) Grewal criticizes DOJ for not appealing Faccciola’s decision and instead coming to him. But DOJ already did appeal Facciola’s decision. I’m pretty sure DOJ filed its appeal in the District Court in DC a few weeks ago, on April 21st. I have the filing if anyone wants to see it; I’ve been meaning to blog on it but haven’t gotten around to it.

    I realize that, to some, any criticism of DOJ is good criticism. But I don’t understand Grewal’s criticism on the merits. What am I missing?

    1. John Hawkinson

      Well, Grewal knows something we don’t know: “in fact it [the Government] both provided the disclosure in the sworn affidavit itself and attached a copy of the opinion to the application materials.”

      So presumably the (sealed) affidavit contextualizes just exactly to what extent this is “judge shopping.”

    2. SHG Post author

      I didn’t read it as a direct finding of “judge shopping” (I don’t think we get to call a mag’s finding a claim). Rather, that Grewal sees the government, which expressly advised the judge that it came to him following Facciola’s denial, as having made an active choice to bring this warrant to CA rather than DC to avoid it going before Facciola and being denied for the same reasons as the warrant, despite a different email account, was otherwise the same and suffered from the same flaws.

      So while this was a warrant for a different entity (different email/provider), it suffered the exact same issues that Facciola decided against the government and openly conceded that it was made in the Northern District of California because the government had been rebuffed in D.C.

      Or perhaps (as John Hawkinson suggests) there was an additional warrant denial by Facciola that didn’t result in a public opinion or appeal that has now walked across country to Grewal, so we’re not possession of all the details presented to the mag.

  4. KheSanh_vet

    I, for one would be quite interested in the real page 3. I am of the personal opinion that many persons seated on high do not craft opinions just to use ink and part of the Government’s logic is contained thereon; this is not in the ‘old days’ where things [I think here of legal land descriptions] were compensated by the word.

    Thank you Scott. I will be back. One has to wonder what Nixon and J. Edgar would think of this …

    1. SHG Post author

      I’ve since gotten my hands on page 3 of the opinion, and the pacer filing has updated to include it. Sorry to disappoint, but it’s got nothing of interest. Just go “blah, blah, blah” and you’re on to page 4. But if you want to look it up, it’s in there.

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