A district court judge is sending government prosecutors back to the drawing board when it comes to how they request warrants to search through suspects’ emails and other electronic communications. In an opinion and order rejecting a warrant request earlier this month, DC Magistrate Judge John Facciola said that the standard format of digital search warrant applications has been consistently leading to overbroad and unconstitutional requests .
“To be clear: the government must stop blindly relying on the language provided by the Department of Justice’s Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual,” he writes. “By doing so, it is only submitting unconstitutional warrant applications.”
Facciola intends to start drilling in the message too. For months now, the court has been modifying warrant requests so that they comply with the Fourth Amendment, but Facciola now says that all further violating warrant requests will be denied with an explanation as to why they aren’t acceptable. Facciola draws on an earlier ruling to suggest how the government should be drafting its requests instead: rather than the government asking to perform the search itself, the court would like the company that hosts the suspect data to perform the search for them and then provide the results.
The earlier ruling also suggests a potentially critical addition: that the government waive its ability to use the plain view doctrine, which allows for the seizure of other evidence it might see while performing a more specific search.
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