When D.C. Magistrate Judge John Facciola announced his retirement, and his bench was to be filled by long-time federal prosecutor G. Michael Harvey, with extensive experience in national security issues, a broad smile swept through Main Justice. Mag. Facciola was a bit tough on warrants for electronic searches, and perhaps Mag. Harvey would be less, well, difficult.
Was the Magistrates’ Revolt over? There was still Mag. Paul Grewal out of the Northern District of California, but why rush to the left coast when the stumbling block close to home is gone? But not all search warrant applications happen on a coast, and not all magistrate judges in flyover land are pushovers.
In the District of Kansas, Magistrate Judge David Waxse joined the revolt by refusing to sign off on a DEA search warrant for a cellphone in In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office. Orin Kerr at Volokh Conspiracy describes the opinion:
Waxse’s opinion is pretty unusual. It includes a long section titled “Applying Constitutional Protections in the Digital Era” that offers an interesting theoretical account of the role of precedent. According to Waxse, magistrate judges should not be overly beholden to Supreme Court precedent when technology changes:
With technological developments moving at such a rapid pace, Supreme Court precedent is and will inevitably continue to be absent with regard to many issues district courts encounter. As a result, an observable gap has arisen between the well-established rules lower courts have and the ones they need in the realm of technology. Courts cannot, however, allow the existence of that gap to infiltrate their decisions in a way that compromises the integrity and objectives of the Fourth Amendment. . . . The danger, of course, is that courts will rely on inapt analogical reasoning and outdated precedent to reach their decisions. To avoid this potential pitfall, courts must be aware of the danger and strive to avoid it by resisting the temptation to rationalize the application of ill-fitting precedent to circumstances.
Judge Waxse then concludes, relying heavily on the reasoning of the Vermont Supreme Court, that he has the authority to deny applications for computer warrants unless they detail how the search will be executed.
Unsurprisingly, Orin sees the opinion as introducing an unwarranted ex ante concern with the reasonableness of the search as a matter of efficiency. Why wait until after the search when it could be determined up front? Then again, Mag. Waxse discusses his requirement for a search protocol in relation to the requirement of particularity, which is unquestionably an appropriate inquiry at the approval stage.
The fact of the matter is that a court is attempting to avoid entirely the harm that ex post remedies are meant to assuage. By only deciding reasonableness of the government’s actions ex post, the government not only possesses a substantial portion of an individual’s private life, but it also fails to prevent a person from having to defend against subsequent unreasonable searches stemming from the initial search and seizure. Requiring search protocol in a warrant allows the court to more effectively fulfill its duty to render, as the Supreme Court put it, a “deliberate, impartial judgment” as to the constitutionality of the proposed search, thus avoiding the need for ex post remedies resulting from an unconstitutional search.
What this addresses is the reality that searches of digital devices, whether cellphones, thumb drives, hard drives, capture not only what the warrant seeks, but every bit of information available on the medium, raising a wealth of questions and issues that never existed with searches of physical items.
If a warrant approved a search for a gun in a closet of an apartment, it would provide inherent constraints on the search. This is the “elephant in a matchbox” issue, that if the agents are searching for an elephant, there would be no justification to search a matchbox since the elephant obviously wouldn’t be in there. The matchbox search may turn up narcotics, but it would be beyond the scope of the warrant. No problem (theoretically, though reality and judicial gymnastics tends to make the outcome far less predictable).
But with a hard drive, everything gets searched even though the warrant seeks only “evidence of crime X,” and everything gets seized. And held. Just because. Maybe forever. Because you never know.
Ordinarily, the manner of execution of a warrant would be left to the discretion of law enforcement. The only issues for the magistrate judge would be whether probable cause exists and the particularity of the things to be searched and seized. That the warrant is executed in a reasonable manner would be left to a reviewing court afterward on a motion to controvert the warrant. Experience is that the incentive to suppress after evidence is found is, well, strongly against suppression.
Accordingly, the Court again finds that “an explanation of the government’s search techniques is being required in order to determine whether the government is executing its search in both good faith and in compliance with the Fourth Amendment.” The Court does not believe that this request will overburden the government. In fact, in Riley, the government advocated — and it can be concluded that the Supreme Court endorsed — the implementation of search protocols: “Alternatively, the Government proposes that law enforcement agencies develop protocols to address concerns raised by cloud computing. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.”
Magistrate Judge Waxse, in light of the distinct nature of digital searches as opposed to physical searches, refused to sign the blank check. Orin argues that this is an erroneous decision, based solely in the efficiency of an ex ante (and therefore theoretical) determination of reasonableness rather than an ex post determination based on how the search was in fact performed.
Of course, efficiency sounds good in theory. But the Constitution imposes limitations on efficient decisionmaking, such as standing, ripeness, the case or controversy requirement, and the aversion to facial challenges. These doctrines are premised on the notion that it’s better for courts to wait to rule and then get it right than for them to rule now but get it wrong. The same is true here. A magistrate judge can only guess what kind of search protocols will end up being reasonable when the search unfolds. Forcing the government to follow whatever guesses the magistrate judge makes at a time when the magistrate has no basis on which to guess accurately is a pretty bad way to do business.
The problem with Orin’s rather slavish adherence to old school precedent in a digital world is that the search, once conducted, cannot be unsearched. While suppression, assuming it’s granted, prevents evidence from being used at trial, it does nothing to prevent the government from knowing everything about a person otherwise.
Given the breadth of information about a person that lives in the hard drive of his cellphone, there is essentially no aspect of a person’s life that would remain private after a search for evidence for a specific offense.
For the person for whom evidence exists, the rest of his life is exposed. For the innocent person wrongfully subject to search, his privacy is gone forever, and there will be no ex post review, nor remedy, nor means of giving him back his privacy. If privacy isn’t protected up front, there is no means to return it to the person searched afterward. The only thing standing in the way of the government invading the privacy of an innocent person is a magistrate judge saying no.
This may be a “bad way to do business” from the perspective of facilitation of government searches, but it’s an excellent way to do business from the perspective of preventing the wholesale eradication of privacy of the innocent victim of government searches. Long live the Magistrates’ Revolt!