WASHINGTON — A federal judge has admonished the Justice Department for repeatedly requesting overly broad searches of people’s email accounts, a practice that he called “repugnant” to the Constitution.
The unusually sharp rebuke by Magistrate Judge John M. Facciola came last week in a kickback investigation involving a defense contractor. The case highlights the broad authority the government believes it has in searching email accounts, a power that gives the Justice Department potential access to a trove of personal information about anyone it investigates, even in routine criminal cases.
“The government continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy email account holders have in their communications,” Judge Facciola wrote.
But, he said, prosecutors must show probable cause for everything they seize, adding that Internet companies can easily search for specific emails, names and dates that are relevant to an investigation. He said he had raised similar concerns 20 times between September and December 2013. In this particular case, prosecutors wanted every email, contact, picture and transaction record associated with an account stored on Apple servers.
“The government continues to ask for all electronically stored information in email accounts, irrespective of the relevance to the investigation,” Judge Facciola said.
Government searching of email accounts predates the Obama administration, but Judge Facciola, a former state and federal prosecutor who has been reviewing warrants as a judge since 1997, said he was increasingly concerned about the breadth of government searches. He said he was also troubled by the fact that the Justice Department never said how long it planned to keep the seized data or whether it planned to destroy information that proved irrelevant to the case.
A decade ago, searches were more straightforward. If the authorities had evidence that someone was hiding drugs in a storage unit, for instance, prosecutors applied for a warrant so F.B.I. agents could open the unit, look through the contents and seize any drugs they found.
The Justice Department, however, does not treat email accounts like storage units. Prosecutors asked Judge Facciola for the authority to take everything in the account and search it for evidence of wrongdoing. Even though the government would have everything, it only considered the evidence to be “seized.” The argument is similar to the Obama administration’s justification for collecting the phone records of every American: that the authorities do not know what is relevant until they have reviewed everything.
“The fact that our data is being held by third-party service providers is allowing the government to engage in fishing expeditions that they’ve never been able to conduct before,” said Nate Cardozo, a lawyer with theElectronic Frontier Foundation.
A Justice Department spokesman, Peter Carr, said prosecutors would respond to the judge in court documents, though it was not clear whether those documents would be public. Warrant applications are typically sealed, so Judge Facciola’s decision to make his ruling public offers a rare view of the process.
Investigators argue that, unlike a storage locker, an email account with all of its associated files cannot be fully searched without getting a complete copy of the account. A search of a Google email account, for example, might miss conversations held via the company’s chat service, or files saved to its servers.
Judge Facciola acknowledged that other judges have reached different conclusions. In Kansas this year, a judge ruled that federal agents did not need to limit their search of a Yahoo account, as long as they only seized emails that were relevant to their case.
Magistrate judges are typically responsible for approving search warrants during investigations, before charges have been filed. Unlike most federal judges, who are nominated by the president, magistrate judges are appointed by a vote of district judges.
Judge Facciola said issuing the warrant in question would be “repugnant to the Fourth Amendment,” which prohibits unlawful search and seizure.11
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