The Fourth Amendment says that warrants must state where the government will search and what evidence the government will seize. In recent years, some federal magistrate judges, when asked to sign warrants for computer searches, have began imposing a new third requirement: limits on how computers can be searched. As I wrote in this 2010 article, I don’t think such limits are permissible. In my view, questions about how a computer is searched must be reviewed after the search in adversarial litigation challenging its reasonableness, rather than guessed at beforehand and written into the warrant by an individual magistrate judge.

At present, however, there isn’t much in the way of caselaw on which side is right. There’s a ton of circuit precedent saying that search protocols are not required. But there’s only one appellate case on whether they are permitted, a Vermont Supreme Court case which concluded that that some restrictions are permitted but others aren’t. No Article III court has yet ruled on the question.

In light of that ongoing debate, I thought I would flag a recent opinion by Magistrate Judge David Waxse in Kansas, In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office. The opinion rejects an application for a warrant to search cell phones in DEA custody because the investigators refused to provide the court with a search protocol. If the government seeks review, it may generate the first Article III precedent that grapples with whether such restrictions are permitted. (The case happens to involve cell phones, but there is no Fourth Amendment difference between a cell phone search and any other computer search.)

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. Although the Supreme Court has indicated that the reasonableness of a warrant execution should be reviewed ex post, not ex ante, Waxse concludes that it’s more efficient to have the review occur ex ante:

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.

He concludes:

If the Court were to authorize this warrant, it would be contradicting the manifest purpose of the Fourth Amendment particularity requirement, which is to prevent general searches. Given the substantial amount of data collected by the government upon searching or seizing a cell phone, as discussed in Riley, requesting an unrestricted search is tantamount to requesting disclosure of a vast array of intimate details of an individual’s private life. For the reasons discussed in this opinion, to issue this warrant would swing the balance between an individual’s right to privacy and the government’s ability to effectively investigate and prosecute crimes too far in favor of the government.

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.”

It is this Court’s belief that a search protocol is the most effective mechanism for determining whether the warrant and the search proposed therein are constitutional. In light of this Court’s previous opinions and this opinion’s further explanation as to why the Court is requesting a search protocol, the government’s present search warrant application must be denied without prejudice.

I think Waxse is wrong, for all the reasons I explained in my article and my many posts on the Vermont case, and my Fifth Circuit amicus brief in the cell site case.

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.

Judge Waxse’s argument about the references to search protocols in Riley is new, but I don’t think it’s apt. DOJ did not say that there should be protocols in warrants, but rather that agents could come up with procedures for searching computers to avoid cloud access in the warrantless search context. See the transcript at 13. It’s not clear how the Supreme Court’s rejection of that warrantless search argument can be read as Supreme Court endorsement of search protocols in warrants.

Anyway, Judge Waxse’s opnion is not the first opinion by a magistrate judge announcing such authority. By my count, it’s the third, following the Edward Cunnius case in Seattle from 2011 and In the Matter of the Search of 3817 W. West End, 321 F. Supp.2d 953 (N.D. Ill. 2004). But DOJ did not seek review of those decisions by filing the applications directly in the District Court, so the question of whether Article III judges will agree that magistrate judges have that power remains unclear.

Will DOJ seek review in this case? (Or did they already, as the opinion, although new to Westlaw, was handed down 6 weeks ago?) I don’t know. But I think they should.