Magistrate Judge Paul Grewal of the Northern District of California, also known as the District of Microsoft, Apple and Google, didn’t care for being shunted the reject from the District of Columbia when the Department of Justice got all pissy about being doubted. “No manifest destiny for you,” Mag. Grewal replied.
But the Revolt of the Magistrates appeared to be harshly put down by Article III tyrants bent on making no assistant United States attorney cry. It appeared that the glorious moment in time when the rubber stamp was thrown away, when the Constitution breathed fire, when the Magistrate Judges would no longer sign anything the DoJ put in front of them, was over.
NO! No, it’s not dead yet. In the thoughtfully captioned IN THE MATTER OF THE SEARCH WARRANT FOR: [REDACTED]@HOTMAIL.COM et al. Mag. Grewal shows that the fight lives on!
A typical federal magistrate judge’s courtroom calendar on criminal duty in 2014 looks much like it did in 1986, when Congress passed the Electronic Communications Privacy Act. Defendants make their initial appearances in the courtroom. Rights are read and detention decisions made. Perhaps an out-of-district case will require an identification and removal hearing. Every week or so, a grand jury foreperson or deputy appears bearing indictments in hand. A handful of agents, family members and others might look on, but no more than that. A 1986 magistrate, as we were simply called back then, would feel right at home.
Not so in chambers, where the bulk of criminal duty is still performed. There, my historical colleague might wonder, where are all the search warrant applications? Not the applications for email warrants, or warrant applications for location data or cell phone records, but the old fashioned kind. The kind where a house hid drugs. Or guns. The kind where the property owner or occupant was the target. At least in the federal courthouse of Silicon Valley, we still see such warrant applications, but they are a distinct minority. Warrants for location data, cell phone records and especially email rule the day.
Oh yes. He said it. Not too shabby for a former patent lawyer, eh? And that’s just the opening two paragraphs.
In the instant application before the court, which generally seeks email on the servers of Microsoft Corporation, one particular provision of Title II stands out: 18 U.S.C. § 2705(b). Pursuant to that section, the government seeks not only a warrant for the email at issue, but also an order prohibiting Microsoft from disclosing the existence of the warrant to anyone.
“So,” you ask? Isn’t secrecy the prosecutor’s coin of the realm?
The problem is that the government does not seek to gag Microsoft for a day, a month, a year, or some other fixed period. Having persuaded the court that a gag order is warranted, it wants Microsoft gagged for . . . well, forever.
Please note that this may be the best use of ellipsis . . . well, ever.
It is certainly true that an infinite period might [ ] qualify a “period” as a matter of mathematics or set theory. But a more common sense view of “period” in the statute suggests some limit less than infinity.
And so the government, in its infinite desire to adhere to the law and respect the Constitution, fixed a period as required by law? NOOOOOOO.
After learning of the court’s unwillingness to sign on to its request, the government raised two primary arguments. One was that Congress showed that it knew how to impose a limit on the gag period in subsection (a) of the same section. Under Section 2705(a), the court may delay notice by up to 90 days. The other was that its proposed order would permit Microsoft to disclose the underlying warrant “upon further notice of this Court.” Neither argument, however, is persuasive.
First, Section 2705(b) clearly requires the court to define some end. That end could come in less than 90 days, 90 days exactly or even more than 90 days. Forever is by definition without end.
That last sentence would make a great title for a country western song, but Mag. Grewal isn’t done yet.
Second, even if Microsoft could be relieved by a subsequent court order, this offers no practical solution to the problem of a never-ending initial order. How exactly would the court come to take such action? Surely the grounds for such a second order could come only at the behest of the government, which uniquely has access to the underlying facts of the investigation.
“Of course the court has the authority to bring this to an end,” the government says, “when we tell you so.” And if the government never says so, for whatever reason, then it never ends.
So while there is probable cause for the issuance of the warrant, the absence of a period upon which the secrecy ends is fatal to the application:
The government’s nondisclosure request is DENIED. The government may submit a renewed request justifying a finite period, if it so chooses.
Or, if it doesn’t so choose, suck eggs. From those of us who appreciate the respect shown by a Magistrate Judge to the law and Constitution, we thank you, Judge Grewal. And to those in the DoJ who don’t understand why they can’t just do what they please, bite me.
H/T EFF’s designated grown-up, Jim Tyre