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Low-level federal judges balking at law enforcement requests for electronic evidence

Low-level federal judges balking at law enforcement requests for electronic evidence:

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

“For the sixth time,” Facciola wrote testily, using italics in a ruling this month, “this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”

Broad based access to telecommunications information can be extremely revealing: law enforcement know this, civil advocates (and defence attorneys) know this, and (increasingly) justices know this. And as justices in particular become more cognizant of just what law enforcement agencies are accessing, and of authorities’ decisions to not target their searches but instead collect (and retain) the entirety of people’s personal information, we’ll see more and more pushback against authorities’ overreaches.

Politics and justice tend to move slowly, often to the point where they ‘lag’ a decade or more behind technology and social norms. However, even these conservative systems tend to eventually correct themselves. As federal American judges ‘balk’ at over collection we’ll see these issues of evidence collection rise through the courts until, hopefully, a good ruling is issued by the Supreme Court of the United States. And then we’ll move onto the next overreach that authorities identify and begin exploiting…