Judge rebukes Feds for overbroad search warrant applications for e-mail

In a rare public rebuke of American prosecutors’ request on accessing a person’s e-mail, a federal magistrate judge in the District of Columbia has denied a government warrant request to search an unnamed user’s e-mail address, citing the request as being over broad.

According to the March 7, 2014 court opinion and order, the case involves alleged corruption and conspiracy by a defense contractor, and “for purposes of this opinion, the details of the investigation -- which remain under seal on the Court’s docket -- are irrelevant.” Citing a key 2010 appellate ruling establishing a warrant requirement (at least in one United States federal judicial district), Judge John Facciola observed, “[T]he government continues to submit overly broad warrants and makes no effort to balance the law enforcement interests against the obvious expectation of privacy e-mail account holders have in their communications.”

As a magistrate, Judge Facciola has the power to grant search and arrest warrants -- and he has done so numerous times in his nearly 17 years on the bench. Legal scholars note that this case is the latest example of increasing judicial scrutiny in recent years against the government’s overreach in its attempt to gather digital data in criminal investigations.

“I think it reflects a growing recognition that we can't treat e-mail as a separate, less-protected form of communication, either as a matter of law or as a matter of practice,” Brian Pascal, a research fellow with the University of California, Hastings Law School, told Ars. “It's just how we talk these days.”