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Judge Tells Feds To Be More Specific About Email Search Warrants

Soulskill posted about 4 months ago | from the get-what-you-need,-not-what-you-want dept.

The Courts 41

An anonymous reader writes "In yet another example of the judicial branch of the government becoming more critical of federal mass acquisition of personal data, federal magistrate judge John Facciola in D.C. 'denied a government warrant request to search an unnamed user's @mac.com e-mail address, citing the request as being overbroad.' The judge further noted (PDF), 'While it is evident from closely reading the Application and its attachments what the government is really after, it is equally evident that the government is using language that has the potential to confuse the provider—in this case Apple—which must determine what information must be given to the government. This Court should not be placed in the position of compelling Apple to divine what the government actually seeks. Until this Application is clarified, it will be denied.'"

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And then... (1)

Anonymous Coward | about 4 months ago | (#46521389)

Poor Federal Magistrate Judge John Facciola just became a target himself.

Re:And then... (1)

aaronmd (314035) | about 4 months ago | (#46521639)

No and then!

Re:And then... (1)

sconeu (64226) | about 4 months ago | (#46521703)

I refuse to play your Chinese food mind games!!!!

Re:And then... (1)

delt0r (999393) | about 4 months ago | (#46522683)

. . . .Annd Theen.

Re:And then... (0)

Anonymous Coward | about 4 months ago | (#46523389)

The judge simply had a '@mac.com' email and didn't want the Feds to read his mail. This is not a sudden outbreak of common sense, please move along.

Warrant requests (3)

cold fjord (826450) | about 4 months ago | (#46521429)

Not much new there.

Warrant requests are modified regularly. [newrepublic.com]

Re:Warrant requests (2)

Charliemopps (1157495) | about 4 months ago | (#46521739)

Wow... next time I end up in court, I sure hope the judge sits down with me and lets me re-word my plea over and over until I win. That'd be great.

Re:Warrant requests (2)

Lloyd_Bryant (73136) | about 4 months ago | (#46521933)

Wow... next time I end up in court, I sure hope the judge sits down with me and lets me re-word my plea over and over until I win. That'd be great.

What else is he supposed to do in this case? There is nothing like a "double jeopardy" rule that applies to warrant applications, so the government's attorneys have and always will have the ability to keep doing it over until they get something that the judge finds acceptable.

Re:Warrant requests (2)

TubeSteak (669689) | about 4 months ago | (#46522113)

What else is he supposed to do in this case? There is nothing like a "double jeopardy" rule that applies to warrant applications, so the government's attorneys have and always will have the ability to keep doing it over until they get something that the judge finds acceptable.

How about 3 strikes and you're out?
I've heard that is really popular amongst prosecutors and law enforcement.

Re:Warrant requests (1)

davester666 (731373) | about 4 months ago | (#46522277)

No, that is only for unindicted terrorists.

Re:Warrant requests (1)

Lloyd_Bryant (73136) | about 4 months ago | (#46522929)

How about 3 strikes and you're out?
I've heard that is really popular amongst prosecutors and law enforcement.

And how would you count the strikes? That would require some sort of central records of warrant applications, each one indexed by something. Using a suspect's name wouldn't be reliable (warrants listing "john Doe" are issued all the time, when law enforcement is trying to get evidence needed to identify a suspect). And you wouldn't be able to rely on a "case ID", since law enforcement would be the one issuing said ID, and could just "open a new case" when they ran out of strikes.

Now add in the possibility of different jurisdictions - a warrant for someone's email could be sought in the jurisdiction in which the person lives, the jurisdiction where the email provider's headquarters are located, the jurisdiction where the servers are located, etc.

And of course if we could rely on prosecutors to police themselves on the matter, we probably wouldn't be having this discussion...

Re:Warrant requests (1)

flyneye (84093) | about 4 months ago | (#46522985)

But when its acceptable to the judge, youll note, it isnt what the cops wanted and it is what theyll have to settle for.

Re:Warrant requests (4, Informative)

cold fjord (826450) | about 4 months ago | (#46522053)

Wow... next time I end up in court, I sure hope the judge sits down with me and lets me re-word my plea over and over until I win. That'd be great.

I'm not sure that you understand what is going on there. The warrant modifications are generally additional restrictions on the warrant, or splitting them to make them more specific, not greater freedom. Is that "winning"? Maybe if you're Charlie Sheen and have tiger blood.

The judges who preside over America's secret court [reuters.com]

... There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court's authorizations comport with what the applicable statutes authorize." ...

In rare public remarks 10 years ago, a former presiding FISA judge, Royce Lamberth, described the process: "I ask questions. I get into the nitty-gritty. I know exactly what is going to be done and why. And my questions are answered, in every case, before I approve an application."

Syracuse University College of Law professor William C. Banks, who follows the FISA court closely, said he suspects that warrants are "modified" when judges request more information about a warrant or decide to split a warrant with multiple suspects, phone numbers and locations into several, more specific ones.

anonymous coward (0)

Anonymous Coward | about 4 months ago | (#46522857)

I'm not sure that you understand what is going on there.

The point is there is one set of rules for normal people and another for buddies.

Regular folks don't get 30 tries to convince the judge. They don't get the judge telling them how to word their plea in a convincing manner and another try.

It is just a TV show. Everyone puts on their best act and then they all go home for the day.

Re:anonymous coward (1)

del_diablo (1747634) | about 4 months ago | (#46523395)

This.

Re:anonymous coward (1)

cold fjord (826450) | about 4 months ago | (#46523693)

No, not "this". He still doesn't understand, and is actually wrong in multiple respects. Besides, it has nothing to do with pleas, or buddies, or TV shows. It is a question of law.

Re:anonymous coward (0)

Anonymous Coward | about 4 months ago | (#46530173)

Since when did law become relevant? Law is that shit bribed idiots with suits make up to mess around with ordinary people. I break it every day to make a living.

Re:anonymous coward (0)

Anonymous Coward | about 4 months ago | (#46524319)

This.

No, not "this". What is going on here is nothing like "I am innocent because X! I mean because Y! I mean because Z!" It is much closer to "This piece of evidence against me should be thrown out because X. No? How about Y? No? How about Z?" which is something you most definitely can do.

In other news... (0)

Anonymous Coward | about 4 months ago | (#46521441)

Federal Magistrate Judge John Facciola has been added to the no-fly list.

Re:In other news... (0)

Anonymous Coward | about 4 months ago | (#46521505)

Just look at his name. Obviously he's one of those no good fer'ners.

Re:In other news... (1)

Etherwalk (681268) | about 4 months ago | (#46521545)

Federal Magistrate Judge John Facciola has been added to the no-fly list.

He's a good judge who's made a name for himself in electronic discovery. He's also... well, a Federal Magistrate Judge. Nobody at DHS is stupid enough to put a Federal Judge on the no-fly list. Actually, if anything, they would have them on some sort of VIP whitelist.

Re:In other news... (2)

Mitreya (579078) | about 4 months ago | (#46521725)

Nobody at DHS is stupid enough to put a Federal Judge on the no-fly list.

Why not? Congressmen did end up on this list a few times

Granted, they would probably be taken off when this issue comes up (unlike the rest of us who just have to deal with it).

Re:In other news... (1)

Etherwalk (681268) | about 4 months ago | (#46523995)

Nobody at DHS is stupid enough to put a Federal Judge on the no-fly list.

Why not? Congressmen did end up on this list a few times

Granted, they would probably be taken off when this issue comes up (unlike the rest of us who just have to deal with it).

Federal Judges are more powerful than Congressmen in many ways. They are also, as a rule, more respectable.

Re:In other news... (1)

v1 (525388) | about 4 months ago | (#46521827)

I'm sure if they were publicly asked if such a whitelist exists, they would deny it. And they would be lying. The first group that inspired the creation of the list is the list of state senators. Those were built into the system from day 1, I'm sure 100% of them are on the "always fly list". And then a few of the uppers in the NSA landed on the list due to travel etc, and raised hell, and got themselves added to the list by internal means. And it just snowballed from there as someone says "well if we're adding sensators and ourselves, who else would be a good idea to keep the heat off us?" Judges, celebs, secretaries of state, governers, union officials, and other powerful people added thereafter. I bet the list is well into the ten thousands by now.

Re:In other news... (1)

EmagGeek (574360) | about 4 months ago | (#46523045)

And the IRS's "audit every year" list.

waa waa what?!?! (1)

ILongForDarkness (1134931) | about 4 months ago | (#46521539)

Actually ask for a specific thing rather than everything that someone has ever done online? What if they miss something.

Re:waa waa what?!?! (3, Insightful)

Anonymous Coward | about 4 months ago | (#46521707)

I was going to make a snide post, but the fact that a judge denying a vague warrant is now news is just sad.

Re:waa waa what?!?! (5, Interesting)

Charliemopps (1157495) | about 4 months ago | (#46521753)

Keep in mind that the government already has the data they are requesting. The warrant is simply how they legitimize that data so they can use it in court.

Re:waa waa what?!?! (1)

davide marney (231845) | about 4 months ago | (#46523175)

Mod parent up.

Re:waa waa what?!?! (3, Insightful)

Anubis IV (1279820) | about 4 months ago | (#46521887)

That's likely why they were using boilerplate. The judge pointed out that the text being used was boilerplate from a 2009 Department of Justice document. That document specifies all sorts of things to make sure that it covers everything in cases where agencies need to search through computer accounts, but the agency making this request was really only interested in the e-mails, so the judge told them to ditch the boilerplate and write what they meant, since otherwise Apple may think that they're compelled to turn over everything.

Also worth noting: this is just a run-of-the-mill case, not some sort of secret court or national security case. The only interesting thing here is a judge acting with some sense. Oh, and that it may be an indication of a growing recognition that citizens have an expectation of privacy with regards to e-mail.

No, you still don't understand (0)

Anonymous Coward | about 4 months ago | (#46523123)

That's likely why they were using boilerplate. The judge pointed out that the text being used was boilerplate from a 2009 Department of Justice document.

This is perhaps the most pertinent part. The boilerplate was from 2009 and DOJ had never updated the boilerplate to fit within limitations imposed by a few 2010+ court rulings.

How many other judges between 2010 and 2014 blindly signed off on DOJ warrants that no longer met the legal standard for narrowness of what is allowed to be collected?

Re:waa waa what?!?! (0)

Anonymous Coward | about 4 months ago | (#46523409)

The only interesting thing here is a judge acting with some sense.

The judge simply had a '@mac.com' email himself and didn't want the Feds to read his mail. This is not a sudden outbreak of common sense.

well just a publicity stunt (0)

Anonymous Coward | about 4 months ago | (#46521563)

Well for every 1000 warrants there should be 1 that is used to throw sand in the eyes of the public, i.e. how impartial and pro privacy the judicial system is.

Fishing for IM as an email request? (1)

AHuxley (892839) | about 4 months ago | (#46521763)

Hoping that an email request will be seen by a provider as all data surrounding that account i.e. email, IM and other computer related tasks?
Great to see the US legal system noting that a vast set of historic data, complex links to other users exists beyond just a classic email accounts data.

"the" government (0)

Anonymous Coward | about 4 months ago | (#46521949)

Why does the judge keep saying "the" government? Government organizations aren't one big monolithic entity. Which "the" is he talking about?

Re:"the" government (2)

tragedy (27079) | about 4 months ago | (#46522073)

He's calling it "The Government" for the same reason prosecutors bring their cases in the name of "The People" or he himself talks about the opinion of "The Court". That's just the convention.

In programming terms (1)

liwee (3407373) | about 4 months ago | (#46522403)

Government search request = *.*

Just reapply at the FISA court (0)

Anonymous Coward | about 4 months ago | (#46522919)

They'll rubber-stamp anything... and they will have jurisdiction if at least one email stored in that account came from overseas somewhere.

"Outdated distinction"? (0)

Anonymous Coward | about 4 months ago | (#46522923)

(That outdated distinction [between opened and unopened email] is irrelevant in the era of widespread modern e-mail, like Gmail.)

What does that even mean? Gmail is just an email provider with a web UI in addition to the standard IMAP/POP3/SMTP interfaces. It distinguishes between opened and unopened mail just like any other email service.

Re:"Outdated distinction"? (0)

Anonymous Coward | about 4 months ago | (#46523075)

They are probably referring to that distinction in the context of snail mail, where there is a legal difference between mail that has been opened and mail that has not.

Step1: Don't ignore instructions from judges (2)

davide marney (231845) | about 4 months ago | (#46523159)

This judge has dealt with this issue in other cases, and in fact had previously told the government exactly what it should do in order to avoid the 4th Amendment problems of general warrants. FTA:

"[In a previous ruling, the Court] warned the government to “adopt stricter search parameters in future applications” or the Court would be "unwilling to issue any search and seizure warrants for electronic data that ignore the constitutional obligations to avoid ‘general’ electronic warrants.” Facebook Opinion, 2013 WL 7856600, at *8. The Court recommended several different approaches, including key word searches, using an independent special master to conduct searches, or segregating the people who are performing the search from those who are conducting the investigation.""

The government attorneys in this case are hopefully looking for a new gig. You don't ignore a judge and feed him boilerplate when he's already on to you.

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