Readers may recall my exceedingly long post on Magistrate Judge Facciola’s recent opinion denying the government’s application for a warrant to search an e-mail account. The government cleaned up and slightly modified its application, and it then resubmitted the application to Magistrate Judge Facciola. Judge Facciola has now issued another opinion denying the application and expanding on the reasoning of his earlier opinion. You can read the new opinion here.

In the new opinion, Magistrate Judge Facciola implicitly responds to two counterarguments that have been made regarding his earlier opinion. First, he argues that the widely-accepted rule allowing “seize first, search second” for seizures of physical electronic storage devices does not apply to e-mail cases because the government has not proven that such a method is the only way to execute the warrant. In Judge Facciola’s view, the caselaw allowing “seize first, search second” is a very narrow rule premised on the judgment that such a procedure is necessary in the context of physical computers (and even then, in Facciola’s view it requires a search protocol, the subject of yet another recent Facciola denial opinion I haven’t blogged about yet). That is categorically not true when the government gets an ECPA warrant, as the provider can execute the search:

Unlike a search of a hard drive or cell phone, there is an alternative that, in accordance with the Fourth Amendment, prevents the government from seizing large quantities of data for which it has not established probable cause: the electronic communication service provider, in this case Apple, can perform the search at the government’s request and turn over any relevant data that it discovers.

Judge Facciola’s new opinion also responds to the argument that his standard is inconsistent with Zurcher v. Stanford Daily. That is not the case, he says, because the nature of his concern is over-seizure, not over-search. In Zurcher, the Court said that the warrant allows a search of the third-party premises. But here Judge Facciola is primarily objecting to the two-step search process involving seizure-first, search-second, a procedure that was not implicated in Zurcher.

I greatly appreciate Judge Facciola’s willingness to engage with counterarguments and to further explain his views. Here are two responses:

First, Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation. The defense would say that the execution of the warrant was unreasonable, and the government would disagree. A court could have a hearing into the specific facts, and witnesses could be called to testify. The parties could file briefs and argue the cases and principles on their side.

By predicting ex ante that the means of executing the warrant will be unreasonable, and then denying the warrant application on that basis, Judge Facciola’s opinion is essentially making a factual finding without facts and a legal conclusion without any briefing on the law. In my view, that’s not the way Fourth Amendment litigation should work. As I argued in my amicus brief in the Fifth Circuit, I don’t think there is yet a ripe dispute on which a court can enter a Fourth Amendment ruling about the reasonableness of the future search. If DOJ ends up appealing Judge Facciola’s denial to the district court, I may end up rewriting my amicus brief for DC Circuit caselaw and filing a version of it in the district court. But it’s too early to know, so that’s just a possibility.

Second, Magistrate Judge Facciola’s reasoning appears to be in significant tension with an Eight Circuit case, United States v. Bach, 310 F.3d 1063 (8th Cir. 2002). Bach held that the execution of an ECPA warrant was reasonable, and the facts show that the warrant was executed using the two-step procedure:

According to Yahoo!, when executing warrants, technicians do not selectively choose or review the contents of the named account. The information retrieved from Bach and AM’s accounts was either loaded onto a zip disc or printed and sent to [the criminal investigator, who then looked through the contents of the e-mail account and identified the evidence].

The Eighth Circuit held that this procedure was constitutionally reasonable. Admittedly, the defendant in Bach was making a different argument than that raised by Judge Facciola. In Bach, the defendant argued that it was constitutionally unreasonable for the provider to do the first step of seizing the contents of the account instead of having the police do it. To execute a warrant, Bach argued, the government has to actually go and execute the warrant. Judge Facciola is making the mirror-image argument, that the government can’t execute the second stage of the warrant and that the provider must do it. Still, if the execution of the warrant in Bach was constitutionally reasonable, it’s not clear why we would expect a different result with the same procedure in this case.