FBI v Apple, Microsoft v Department of Justice, and Post-Riley Cell Phone Searches: Rediscovering the Fourth Amendment
A research resource developed by Professor Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics, Georgia State University College of Law
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WHAT'S WRONG WITH CELL PHONE SEARCH WARANTS AND OTHER WARRANTS FOR ELECTRONICALLY STORED INFORMATION
On March 11, 2014, In the Matter of the Search of Black Iphone 4 Judge John M. Facciola, U.S Magistrte Judge for the District Court for District of Columbia, denied as overbroad a warrant application containing what he described as formulaic "boilerplate" language asking to "seize all records" contained in three cellular telephones including all text messages, voice mail messages, and photographs. Nine days later, on March 20, 2014, In the Matter of the Search of Odys Loox Plus Tablet he denied a warrant application to search a cell phone, laptop computer, tablet and digital camera because the government proposed to make mirror images of the data on all four devices without specifying procedures to avoid viewing material not within the scope of the warrant. Less than a week later, on March 26, 2014, In the Matter of the Search of Apple IPhone Judge Facciola denied yet another a cell phone search warrant applicantion, stating that as in the prior two cases the warrant application sought authorization to take and sift through massive amounts of data for which the government had no probable cause to seize in the first place and the government continued to refuse to explain how it would limit its search of data. "When searching electronic devices to seize the data, the potentail for abuse has never been greater," id, 31 F.Supp.3d at 167. In 2014 Judge Facciola had a criminal rotation once every three months, 13 F.Supp.3d at 155n.14; he retired at the end of 2014.
On June 26, 2014, In the Matter of the Search of Premises Known as a Nextel Cellular Telephone Judge David Waxse, Magistrate Judge for the U.S. District Court for the District of Kansas, denied a cell phone search warrant application that would have authorized "examination of all of the data contained in such cellular telephone hardware ... to view the data to determine whehter it falls within the items to be seized." He noted that the 4th Amendment requires that a warrant must "describe the things to be seized with sufficient particularity" and "contain sufficiently particularized language that creates a nexus between the suspected crime and the things to be seized." He cited with approval and discussed at length Judge Facciola's warrant decisions from March 2014. On August 4, 2014, In the Matter of the Search of the Premises Known as Three Cellphones and One Micro-SD Card he denied a warrant application that sought authorization to seize from three cell phones all "text messages, picture messages, pictures, voicemails, calls received, outgoing calls, and phone book logs." On December 30, 2014, In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office, Judge Waxse denied a warrant application that sought authorization to seize "any names, addresses, telephone numbers, text messages, digital images, video depictions, or other identification data or communications" from five cell phones without specifying a search protocol."Preventing the issuance of general warrants in the context of electronically stored information ("ESI") has been the chief aim of this Court's recent opinions." Id., 2014 WL7793690 at *3. Judge Waxse's recent, very detailed, opinion, In the Matter of the Search of premises known as: Three Hotmail Email accounts, provides a thorough review of both caselaw and scholarship in this area and applies the reasoning of his prior cell phone decisions to deny a warrant application to seize the content of all email information in three different accounts held by Microsoft. In particular he makes the case for the use of court-appointed special masters, potentially assisted by independent vendors, to review aggregate data and then turn over only responsive items to the government pursuant to a warrant that meets constitutional standards for particularity, citing approval of such an approach for searching computer data by the Vermont Supreme Court, 71 A3d 1158 (2012).. 2016 WL 1239916 at * 21-22.
Ann E. Marimow & Craig Timberg, Low-level federal judges balking at law enforcement requests for electronic evidence, Washington Post, Apr. 24, 2014
Patrick J. Cotter, Magistrates' Revolt: Unexpected Resistance to Federal Government Efforts to Get "General Warrants" for Electronic Information, The National Law Review, May 15, 2014
Reid Day, Comment, Let the Magistrates Revolt: A Review of Search Warrant Applications for Electronic Information Possessed by Online Services, 64 U. Kan. L. Rev. 491 (2015)
William Clark, Note, Protecting the Privacies of Digital Life: Riley v California, the Fourth Amendment's Particularity Requrement and Search Protocols for Cell Phone Search Warrants, 56 Boston College L. Rev. 1981, 1997-2007 (2015)
Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vanderbilt L.Rev. 585, 617-21 (2016)
Magistrate Facciola cases (D.D.C.)
John M. Facciola was appointed a United States Magistrate Judge in the District of Columbia in 1997, served as Chief Magistrate Judge, and retired from the bench in 2014. Prior to being appointed to the bench, he served as an Assistant District Attorney in Manhattan from 1969-1973, and was in private practice in the District of Columbia from 1974-1982. Judge Facciola joined the U.S. Attorney's Office in 1982 and served as Chief of the Special Proceedings section from 1989 until his appointment as Magistrate Judge. Judge Facciola has been a frequent lecturer and speaker on the topic of electronic discovery. Judge Facciola is a member of the Sedona Conference Advisory Board, the Georgetown Advanced E-Discovery Institute Advisory Board and he is also the former Editor in Chief of The Federal Courts Law Review, the electronic law journal of the Federal Magistrate Judges Association. He also served on the Board of Directors of the Federal Judicial Center. He is currently an adjunct professor at Georgetown Law School where he teaches Information Technology and Modern Litigation. He has been described as the "jurist whose leadership has shaped the way e-discovery is approached, performed and governed by law." Association of Certified E-Discovery Specialists.
John M. Facciola official biography (U.S. District Court for the District of Columbia)
In the Matter of the Search of Information Associated With the Facebook Account Identified by the Username AAR-On.Alexis That is Stored at Premises Controlled by Facebook, Inc., Case 13-MJ-7242 (JMF), 21 F.Supp.3d 1 (D.D.C., Nov. 26, 2013)
In the Matter of the Search of Black Iphone 4, S/N Not Available, In the Matter of the Search of Samsung SGH-T989 aka Galaxy S II Cellular Telephone IMEI 359858/04/531905/8, S/N R31CC12PDBN, In the Matter of the Search of Samsung SGH-S150G Cellular Telephone, Black in Color, IMEI 564082/05/308324/2, S/N R21D5951DT, In the Matter of the Search of Western Digital TV, S/N WNT291019173, In the Matter of the Search of Western Digital Hard Drive, S/N WCAUK1341857, In the Matter of the Search of Western Digital Mybook Essential Hard Drive, S/N WCAZA5015009, Magistrate Case No. 14-235 (JMF), Magistrate Case No 14-236 (JMG-F), Magistrate Case No. 14-237 (JMF), Magistrate Case No. 14-238 (JMF), Magistrate Case No. 14-239 (JMF), Magistrate Case No. 14-240 (JMF), 27 F.Supp.3d 74 (D.D.C., March 11, 2014)
In the Matter of the Search of Odys Loox Plus Tablet, Serial Number 4707213703415, in Custody of United States Postal Inspection Service, 1400 New York Ave NW, Washington, DC, In the Matter of the Search of a Fuji-film Camera Finepix Containing a 16 GB Disc, Serial Number 2UG62662, In Custody of United States Postal Inspection Service, 1400 New York Ave NW, Washington, DC, In the Matter of the Search of an LG Cell Phone, Serial Number 107KPED087260, in Custody of United States Postal Inspection Service, 1400 New York Ave NW, Washington, DC, In the Matter of the Search of Sony Laptop Computer, Serial Number 275558235000498 in Custody of United States Postal Service, 1400 New York Ave NW, Washington, DC, Magistrate Case No. 14-265 (JMF), Magistrate Case No. 14-266 (JMF), Magistrate Case No. 14-267 (JMF), Magistrate Case No. 14-268 (JMF), 28 F.Supp.3d 40 (D.D.C., March 20, 2014)
In the Matter of the Search of Apple IPhone, IMEI 013888003738427, Magistrate Case N0. 14-278 (JMF), 31 F.Supp.3d 159 (D.D.C., March 26, 2014)
In the Matter of the Search of Information Associated with [redacted]@mac.com That is Stored at Premises Controlled by Apple, Inc., Magistrate Case. No. 14-228 (JMF), 13 F.Supp.3d 145 (D.D.C., April 7, 2014), vacated sub nom, In the Matter of the Search of Information Associated with [redacted]@mac.com That is Stored at Premises Controlled by Apple, Inc., Magistrate Case No. 14-228, 13 F.Supp.3d 157 (D.D.C., August 8, 2014)
Magistrate Waxse Warrant Cases (D. Kansas)
David J. Waxse served as a full-time Magistrate Judge for U.S. District Court for the District of Kansas from 1999-2014 and continues to serve as a Recalled Magistrate. Judge Waxse is a Past-President of the Kansas Bar Association and past chair of the National Conference of Federal Trial Judges of the American Bar Association.
David J. Waxse official biography (U.S. District Court for the District of Kansas)
Magistrate Judge Waxse Retires from Full-time Service, Press Release, Feb. 24, 2014
Ann E. Marimow & Craig Timberg, Low-level federal judges balking at law enforcement requests for electronic evidence, Washington Post, Apr. 24, 2014
Patrick J. Cotter, Magistrates' Revolt: Unexpected Resistance to Federal Government Efforts to Get "General Warrants" for Electronic Information, The National Law Review, May 15, 2014
Reid Day, Comment, Let the Magistrates Revolt: A Review of Search Warrant Applications for Electronic Information Possessed by Online Services, 64 U. Kan. L. Rev. 491 (2015)
William Clark, Note, Protecting the Privacies of Digital Life: Riley v California, the Fourth Amendment's Particularity Requrement and Search Protocols for Cell Phone Search Warrants, 56 Boston College L. Rev. 1981, 1997-2007 (2015)
Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vanderbilt L.Rev. 585, 617-21 (2016)
On June 26, 2014, In the Matter of the Search of Premises Known as a Nextel Cellular Telephone Judge Waxse denied a cell phone search warrant application that would have authorized "examination of all of the data contained in such cellular telephone hardware ... to view the data to determine whehter it falls within the items to be seized." He noted that the 4th Amendment requires that a warrant must "describe the things to be seized with sufficient particularity" and "contain sufficiently particularized language that creates a nexus between the suspected crime and the things to be seized." He cited with approval and discussed at length Judge Facciola's warrant decisions from March 2014. On August 4, 2014, In the Matter of the Search of the Premises Known as Three Cellphones and One Micro-SD Card he denied a warrant application that sought authorization to seize from three cell phones all "text messages, picture messages, pictures, voicemails, calls received, outgoing calls, and phone book logs." On December 30, 2014, In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office, Judge Waxse denied a warrant application that sought authorization to seize "any names, addresses, telephone numbers, text messages, digital images, video depictions, or other identification data or communications" from five cell phones without specifying a search protocol."Preventing the issuance of general warrants in the context of electronically stored information ("ESI") has been the chief aim of this Court's recent opinions." Id., 2014 WL7793690 at *3. Judge Waxse's recent, very detailed, opinion, In the Matter of the Search of premises known as: Three Hotmail Email accounts, provides a thorough review of both caselaw and scholarship in this area and applies the reasoning of his prior cell phone decisions to deny a warrant application to seize the content of all email information in three different accounts held by Microsoft. In particular he makes the case for the use of court-appointed special masters, potentially assisted by independent vendors, to review aggregate data and then turn over only responsive items to the government pursuant to a warrant that meets constitutional standards for particularity, citing approval of such an approach for searching computer data by the Vermont Supreme Court, 71 A3d 1158 (2012).. 2016 WL 1239916 at * 21-22.
In the Matter of Applications for Search Warrants for Information Associated with Target Email Address, Nos. 12-MJ-8119-DJW, 12-MJ-8191-DJW, 2012 WL 4383917 (D. Kansas Sept. 21, 2012) (Waxse, U.S. Mag. J.)
In the Matter of Applications for Search Warrants for Information Associated with Target Email Accounts/Skype, Nos. 13-MJ-8163-JPO, 13-MJ-8164-DJW, 13-MJ8165-DJW, 13-MJ-8166-JPO, 13-MJ-8167-DJW, 2013 WL 46475554 (D. Kansas Aug. 27, 2013) (Waxse, U.S. Mag. J.)
In the Matter of the Search of Premises Known as a Nextel Cellular Telephone, No. 14-MJ-8005-DJW, 2014 WL 2898262 (D. Kansas June 26, 2014) (Waxse, U.S. Mag. J.)
In the Matter of the Search of the Premises Known as Three Cellphones and One Micro-SD Card, No L4-MJ-8013-DJW, 2014 WL 3845157 (D. Kansas Aug 4, 2014) (Waxse, U.S. Mag. J.)
In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office, No. 14-MJ-8017-DJW, 2014 WL7793690 (D. Kansas Dec. 30, 2014) (Waxse, U.S. Mag. J.)