Updates on Magistrate Judge Facciola’s cases

May 22

I’ve blogged several times about Magistrate Judge Facciola’s recent opinions denying government applications for warrants and court orders involving digital evidence. Here are three updates for readers who are following the story.

1) First, last Friday, it became public that Chief Judge Richard Roberts already reversed Magistrate Judge Facciola in two of his decisions, those involving the non-disclosure provisions of 18 U.S.C. § 2705(b). Magistrate Judge Facciola had invited the provider (in that case, Twitter) to intervene in the case and indicate whether it wanted to be heard on the merits. Magistrate Judge Facciola had also ordered DOJ to file a public redacted version of its application and draft order. Chief Judge Roberts disagreed. From the conclusion:

The orders inviting Twitter to intervene and instructing the government to file a public, redacted copy of the nondisclosure application are not supported by the text of 18 U.S.C. § 2705(b), Rule 6(e) of the Federal Rules of Criminal Procedure, or the applicable D.C. Circuit precedent regarding access to grand jury-related materials. Accordingly, the magistrate judge’s orders will be vacated. Because the government has met its required showing under § 2705(b), the government’s application for a non-disclosure order will be granted, and the government’s request to seal the application and resulting order under Rule 6(e)(6) of the Federal Rules of Criminal Procedure will be granted.

2) Next, DOJ also filed objections before Chief Judge Roberts to Magistrate Judge Facciola’s opinion prohibiting the common procedure for executing search warrants with Internet providers, in which the providers hand over the contents of the account and then investigators search it for the relevant evidence. You can read DOJ’s memorandum in support of its objections here. The Electronic Frontier Foundation has asked Chief Judge Roberts for permission to file an amicus brief, presumably in defense of Facciola’s opinion, but Roberts has not yet ruled on the request.

I agree with much of DOJ’s memorandum, which shares a lot with what I have written on the issue. At the same time, I have two areas of disagreement with DOJ that I thought I would raise here.

First, I don’t think the court can reach the merits of the Fourth Amendment question because there is no ripe dispute to adjudicate at this stage. The government has applied for a warrant, but we don’t yet know what the facts are of how the warrant will be executed. As I explained in my amicus brief before the Fifth Circuit involving similar issues, there are no facts yet, and the courts have no authority to weigh in on how the Fourth Amendment might apply absent facts. As Magistrate Judge Grewal recently noted in identical circumstances — more on his opinion in a minute — no one knows what the facts are to which the Fourth Amendment might be applied:

In this ex ante, and also ex parte process, magistrate judges are called on to review the reasonableness of execution procedures like seize first, search second in the sterile isolation of their chambers. All that is available for review comes from the government. No defendant or defense counsel is present. 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.

I would add that the absence of “hard, ripe facts” means that the case is not ripe for review, and when the case is not ripe federal courts lack the Article III power to adjudicate the question. Under caselaw like Dalia, courts should issue the warrant because they lack the power to rule ex ante on the constitutionality of how the warrant might be executed.

My second area of disagreement with the DOJ brief is that I don’t think Fed. R. Crim. Pro. 41 is at all relevant to the constitutionality of the procedure. The Federal Rules of Criminal Procedure are not interpretations of the Fourth Amendment, and the drafting and enactment of the rules often leaves aside constitutional issues. The Notes of the Criminal Rules Committee that first adopted the two-step procedure in Rule 41 specifically included the following: “The amended rule does not address the specificity of description that the Fourth Amendment may require in a warrant for electronically stored information, leaving the application of this and other constitutional standards concerning both the seizure and the search to ongoing case law development.”

3) The last development I wanted to point out is the decision by Magistrate Judge Grewal in the Northern District of California on the same issue that Facciola’s decided in the case discussed in #2 above.

As best as I can tell, this is an application that Facciola had denied without published opinion (along with others) when he denied the application in the published case discussed in #2 above. Instead of waiting for Chief Judge Roberts to decide the appeal in #2, DOJ went to another another district with jurisdiction over the offense pursuant to 18 U.S.C. 2703. DOJ disclosed the prior denial from Magistrate Judge Facciola and requested that the magistrate in the second jurisdiction grant the application. Some have read Magistrate Grewal’s decision rejecting the application as agreeing with Magistrate Judge Facciola and joining him in the “Magistrate’s Revolt.” I don’t think that’s right, though. In the end, Magistrate Judge Grewal rejected the application because it lacks a date restriction and perhaps also because it doesn’t promise to return or destroy irrelevant evidence. I read him to say that the “seize first, search second” procedure is generally fine, at least in the Ninth Circuit, under the Hill precedent from the physical search context.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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