Sunday, May 1, 2016

Out-of-District Warrants and the Stored Communications Act

Can a magistrate judge issue a warrant to seize data from a private email account held in another district? No. Neither the Stored Communications Act nor Federal Rule of Criminal Procedure 41, at least as currently written, authorize a judge in one district to issue a warrant to be served in another district. This was the ruling issued last week in United States v. Barber, D.Kan. 15-cr-40043-CM.

In Barber, an FBI agent obtained a search warrant from a District of Maryland magistrate judge to seize the content of the defendant's email account. The information was in the possession of Google Inc. and stored in California. "Special Agent O’Donnell testified in court that he believed he was able to ask any court with jurisdiction over a particular violation to issue a warrant when he was investigating email accounts without knowing where the account users were located." The defense challenged this warrant as unauthorized by federal law.

The Kansas district court first addressed standing. The defendant had an expectation that the contents of his email account were private (although that expectation did not extend to emails sent to another account, a standing issue still in dispute among the lower courts). The Court then turned to the warrant's validity. First, Rule 41: The Maryland magistrate court exceeded its authority "by issuing a warrant for a search outside his district. Rule 41(b) gives a magistrate judge authority to issue a warrant for a search and seizure of property located within the district."

The second question was whether the Stored Communications Act, found at 18 U.S.C. § 2703(a), authorized the warrant. The SCA did not authorize the out-of-district warrant. "The problem with utilizing the SCA to provide the jurisdiction the Maryland magistrate judge needed to issue the second warrant is this: The government presented no evidence that the offense being investigated occurred in Maryland. Courts that have interpreted the language 'jurisdiction over the offense being investigated' have held that Congress intended it to mean territorial jurisdiction over the offense—not general jurisdiction over all federal criminal offenses."

Without authorization for the warrant, the issue became one of remedy. The statute provides no recourse for government violations. But an unauthorized warrant still has constitutional ramifications. Warrants issued without jurisdiction are void. And a "warrant that is void from its inception is no warrant at all." Accordingly, the Court found this warrantless search violated the Fourth Amendment.

The next question, then, was whether the good-faith doctrine saved this unconstitutional search. Again, the answer was no. Because this warrant was never authorized by law, it was void at its inception. There "was no warrant at all."  The good-faith doctrine does not apply when there was no warrant. The Court then ordered that the evidence seized from the defendant's home, based on probable cause generated by the unlawful search of his emails, must be suppressed. And that is the Barber decision.

Back to Rule 41. The Court was specific: the Rule does not authorize a magistrate judge to issue warrants to be executed in another district. But now the Supreme Court has moved to expand the reach of Rule 41. This amendment, proposed to Congress by Chief Justice Roberts, would allow magistrate judges to issue a warrant to "hack into and seize data stored on a computer, even if that computer’s actual location 'has been concealed through technical means,'" as described by  The Atlantic (The Supreme Court Expands FBI Hacking Powers). "In other words, under the new rule, a judge in California could approve a warrant allowing federal agents to lawfully hack into a computer without knowing its true location, whether it be New York, Budapest, or one of Jupiter’s moons." This has generated some controversy in Congress, but absent a vote to override the Supreme Court's proposal, the change will take effect December 1.

Thanks to Branden Bell, who litigated this issue on behalf of Mr. Barber.

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