Judge rebukes Justice Department over e-mail searches

  • Article by: Matt Apuzzo
  • New York Times
  • March 19, 2014 - 9:00 PM

– A federal judge has admonished the Justice Department for repeatedly requesting overly broad searches of people’s e-mail accounts, a practice that he called “repugnant” to the Constitution.

The unusually harsh rebuke by Magistrate Judge John M. Facciola comes as the Obama administration fends off accusations by civil liberties groups and many in Congress that its bulk seizure of phone records in the name of national security is also overly broad and unconstitutional.

Facciola’s opinion came last week in a kickback investigation involving a defense contractor, not in a national security case.

But the judge’s words echo criticisms the administration has heard repeatedly since former intelligence contractor Edward Snowden began providing classified National Security Agency documents to news outlets.

“The government continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy e-mail account holders have in their communications,” Facciola wrote.

He revealed little about the underlying investigation but said it involved a poorly written, unclear request to seize e-mails, contact information and other data from someone’s Apple account. The judge said he had modified 20 similar warrant requests between September and December.

“Its applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information,” he said.

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.

Matters involving search warrants are typically sealed, but Facciola opted to make his opinion public. He said issuing the warrant in question would be “repugnant to the Fourth Amendment,” which prohibits unlawful search and seizure.

Facciola, who previously served as a state and federal prosecutor, said prosecutors could easily limit their searches to information relevant to their case. Internet companies can easily search for specific e-mails, names and dates, the judge said.

The judge 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 Justice Department spokesman, Peter Carr, said prosecutors would respond to the judge in court documents, although it was not clear whether those documents would be public.

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