Court Calls Out Government For The 'General Warrant' It Served To Facebook

Legal Issues

from the but-awards-it-an-A-for-effort dept

In a disturbing case involving the sex trafficking of minors, the 11th Circuit Appeals Court has reached a few interesting conclusions involving digital searches and the Fourth Amendment. Included in the court’s findings are rulings on the use of the All Writs Act to force Apple to unlock a device, an email warrant served to Microsoft, and warrants used to obtain a vast amount of information from Facebook. [h/t Orin Kerr]

The All Writs Act received a ton of free publicity thanks to Apple’s fight with the DOJ over the (forced) unlocking of the San Bernardino shooter’s iPhone. Ultimately, the DOJ hired outside help to crack open the phone, abandoning its search for helpful precedent. (And, ultimately, the phone — the shooter’s work-issued phone — contained nothing of interest.)

Here, the Appeals Court finds [PDF] there’s nothing wrong with using the 1789 All Writs Act to paper over holes in the 200+ years of legislation.

The authority granted by the All Writs Act is broad but not boundless. The Act “is a residual source of authority” that permits issuing writs only if they “are not otherwise covered by statute.” Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985). It is a gap filler. “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. And where Congress has proscribed a certain type of judicial action, the Act cannot overcome that proscription. See id. The bypass order meets this requirement because no statute expressly permits or prohibits it.

Using somewhat circular reasoning, the court states the All Writs warrant issued here doesn’t produce any Fourth Amendment difficulties because Apple willingly complied with it.

To comply with the bypass order, Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad’s data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order’s requirements.

More helpfully, the court seems to suggest it’s amenable to challenges like the one raised here. In most cases, challenging an All Writs warrant can only be done by the company receiving it. The court doesn’t have to meet the issue of whether or not the defendants had standing to challenge the warrant served to Apple, but doesn’t immediately dismiss their attempt to establish standing.

Moving on, the court examines the warrant served to Microsoft for emails related to the criminal charges. The court finds the warrant was not overbroad.

Viewed against that constitutional history, the Microsoft warrant complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

How often does a court describe a warrant as merely “okay?” I’m guessing it’s probably not that often. Here’s why it did in this case, explained in the footnote attached to the “okay” descriptor.

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.

The government passes this warrant examination with C-. The work needs improvement and the government just isn’t applying itself. Unfortunately, neither is the court if it’s going to allow third parties do the government’s particularity work for it.

The Facebook warrant, however, doesn’t live up to the court’s “okay” standard.

The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account… And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a “general warrant.”

If there’s one thing law enforcement doesn’t want to hear from a judge, it’s the term “general warrant.” Being compared to an occupying force is never a good thing. And these warrants are definitely not “okay.”

The two warrants required Facebook to “disclose” to the government virtually every type of data that could be located in a Facebook account, including every private instant message Moore had ever sent or received, every IP address she had ever logged in from, every photograph she had ever uploaded or been “tagged” in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through “Facebook Marketplace,” as well as her entire contact list. The disclosures were not limited to data from the period of time during which Moore managed the prostitution ring; one warrant asked for all data “from the period of the creation of the account” and the other did not specify what period of time was requested.

The government claimed the Facebook warrant was no different than warrants used to search electronic devices. In the latter case, the government generally takes possession of the device and digs through it until it finds what it needs. (This is an area of jurisprudence that is slowly shifting. With “persons’ entire lives” often located on devices like smartphones, the analog equivalent is the government seizing the entire contents of a person’s home before taking what’s actually relevant to the case at hand.) The court has no sympathy for this argument, pointing out the warrant should have asked Facebook for only what was relevant and allow a non-government party to dig through the suspects’ digital personal effects.

The means of hiding evidence on a hard drive — obscure folders, misnamed files, encrypted data — are not currently possible in the context of a Facebook account. Hard drive searches require time-consuming electronic forensic investigation with special equipment, and conducting that kind of search in the defendant’s home would be impractical, if not impossible. By contrast, when it comes to Facebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data.

And the government should know this, because it does this thousands of times a year.

That procedure does not appear to be impractical for Facebook or for the government. Facebook produced data in response to over 9500 search warrants in the six-month period between July and December 2015.

Unfortunately, the government is allowed to keep the Facebook evidence under the “good faith” exception.

The Facebook warrants do not fall within either category of excludable warrants. As we have already explained, probable cause supported issuance of the warrants. And while the warrants may have violated the particularity requirement, whether they did is not an open and shut matter; it is a close enough question that the warrants were not “so facially deficient” that the FBI agents who executed them could not have reasonably believed them to be valid.

This suggests a two-step process for warrants served to service providers might be the better path to take in the future. While particularity is difficult to nail down when you’re not sure exactly what you’re looking for, trimming down demands for data and communications to relevant time periods raises the chances of warrants surviving suppression challenges. The court sets no precedent in this decision thanks to its good faith ruling, but the footnote addressing the Microsoft warrant and the multiple paragraphs devoted to the government’s Facebook haul hints the government really needs to tighten up its search warrant procedures.

Filed Under: all writs act, doj, fishing expedition, general warrant, surveillance
Companies: apple, facebook, microsoft