Demonstrators in February were mobilized over the FBI’s attempts to force Apple to create a way to break into the iPhone of a San Bernardino killer. Experts say law on such searches lags behind fast-evolving technology. Steven Senne AP
Demonstrators in February were mobilized over the FBI’s attempts to force Apple to create a way to break into the iPhone of a San Bernardino killer. Experts say law on such searches lags behind fast-evolving technology. Steven Senne AP

Government & Politics

Kansas court official draws a line on email searches in debate over privacy

By Scott Canon

April 09, 2016 2:56 PM

The suspects remain anonymous and likely unaware the government is on to them.

It’s anybody’s guess whether criminal charges lie in the future.

Yet a low-level court official in Kansas City, Kan., made one thing clear in recently rejecting a warrant request from the U.S. Attorney: investigators can’t go rooting freely in the email accounts of criminal suspects.

U.S. Magistrate Judge David Waxse argued — in an expansive, signal-sending decision — that looking through an email account can intrude on someone’s privacy more than a search of their home.

He compared access to your email to a cavity search. Browsing through your account, he noted, might be the best way yet to learn about your religion, your politics, finances, health, your sex life.

“A person’s email account,” he wrote in a sternly argued opinion in late March, “may reveal their ‘privacies of life.’ 

For that reason, he sided with a growing number of magistrates who man a largely overlooked front line of the court system. They’ve increasingly rejected warrants sought to track the electronic trails that criminal suspects — like the rest of us — leave in our increasingly digital world.

While technology jets forward at light speed, Congress mires in gridlock. That leaves the law lagging woefully behind your computer, your tablet, your smartphone.

Consider the effort last month to force Apple to write computer code to unlock a San Bernardino killer’s iPhone. It got set aside when the FBI found another way to crack the device.

But the case underlined how antiquated America’s laws can be when sorting out whether the government can snoop in your virtual possessions. The U.S. Justice Department pressed Apple in that case through the All Writs Act, law crafted generations before the invention of the telegraph and almost two centuries before the Internet beeped to life.

Many analysts believe prosecutors took comfort in the techie work-around because it avoided a courtroom showdown. Had the judiciary let Apple off the hook in the San Bernardino case, that precedent might have blocked thousands of other warrants to come.

That’s why, they say, prosecutors rarely appeal when magistrates deny their digital searches. They fear a “no” that could shut off a powerful investigative tool in cases across the board.

Meantime, the country finds itself unsure how the Fourth Amendment’s protection against “unreasonable searches and seizures” applies to the bread crumbs left at cellphone towers, in Web browsing histories, emails, text messages, Snapchat sessions or ideas still gestating in Silicon Valley.

That means the ability of cops to track your movements by monitoring your cellphone calls or reading your email — typically without your knowledge — can vary from one court district to the next. It can also turn on the attitudes, or the digital sophistication, of the magistrate on duty on a given day.

Without fresh laws from Congress or many significant decisions by higher courts, one low-level magistrate might deny a reasonable warrant request that could expose dangerous crime, while another could grant a warrant that might reveal the secret life of an innocent person.

“Technology always evolves faster than the law. Always has. Always will,” said Mark Rumold, a senior staff attorney for the civil liberties group the Electronic Frontier Foundation. “Now some of these magistrates” — judges such as Waxse — “are making sure this is something we talk about out in the open.”

Warrant police

Most warrants for searches of cellphone records, hard drives, email accounts or potential clues stored in the Internet’s clouds get approved or rejected in secret.

More than 500 federal magistrate judges across the country field the requests in the trenches of the criminal justice system. They typically grant or deny them without comment.

But at times, they’ll explain their decisions in long, written opinions intended to sway others to their thinking. Unlike district or appellate judges, their ability to set precedent is nearly nonexistent. So they try to direct the conversation with the power of their arguments.

In a recent case that landed on Waxse’s bench, a warrant request came in the course of a case of possible software pirating.

Waxse issued a decision that redacted the full email addresses in question. No reason to tip off potential software thieves, after all, or incriminate someone. But the decision does reveal that the government wanted access to three email accounts dating back to 2008.

His 49-page rejection of the search ran about 48 pages more than the specific decision required. It’s meant, legal analysts say, as a message. They say Waxse aims to draw attention from the public, from prosecutors and especially from his fellow magistrates and higher court judges to a legal area he believes needs to be cleared up.

Mostly he argues that requests to look through an entire email account are too broad, the sort of thing the founding fathers warned against.

“The manifest purpose of the Fourth Amendment particularity requirement is to prevent the Framers’ chief evil: general searches,” Waxse wrote.

Part of his worry ran to the legal idea of “plain view.” If a cop has a warrant to search your garage for photographs of naked children and instead finds an ounce of pot, the government can charge you with drug possession.

By allowing open-ended searches of email accounts, Waxse warns of fishing expeditions that could find almost anything. He imagines searching through the emails of a school principal in pursuit of embezzlement evidence and turning up clues to a student-teacher romance.

He also worries about what happens if the government gets an email address wrong. “The risk of searching and/or seizing innocent people’s communications is high,” he wrote.

And he notes that Adams or Jefferson could hardly anticipate a warrant for three Hotmail accounts when they thought about authorities seizing a few letters scribbled with a quill pen.

Detectives can’t practically occupy a Microsoft data center where the accounts are stored. Microsoft isn’t equipped to find what investigators might be looking for. So, Waxse wrote, that means putting duplicates of the entire contents of the accounts in government hands.

“The individual has — probably unknowingly — outsourced her constitutional right to privacy to providers of remote computing or communications software or tools,” he wrote. “Americans may be unwilling to make that trade.”

And tech companies such as Microsoft, Google, Amazon and Apple find themselves in the middle. In this case, it’s Microsoft.

Asked about the case, the computer giant referred to various public declarations it’s made.

Microsoft has repeatedly expressed frustration over what it sees as outdated laws governing email and other electronic data — saying federal officials have exploited that vacuum to give law enforcement more power.

“We need new law for a new century, not continued reliance on a law that is older than many devices that now sit in a museum,” Brad Smith, Microsoft’s president and chief legal officer, recently told a congressional committee.

A revolt

Waxse sits among an oft-overlooked band of judges who regularly speak to each other, and to us, through deliberately public opinions.

The Kansas City, Kan., magistrate has done it before. In a 2014 case, he turned down a warrant to look through the contents of cellphones obtained by the Drug Enforcement Administration because the agency refused to set limits on what it might look at.

Waxse did not reply for a request for comment. A spokesman for U.S. Attorney Barry Grissom said the office couldn’t comment about an ongoing criminal investigation.

Waxse has compatriots. As a federal magistrate in Texas, Brian Owsley wrote several such opinions when confronted with requests for information from cellphone towers or so-called stingrays — devices used by law enforcement that mimic the signals of cell towers to intercept information from mobile devices.

That information not only can show what numbers a phone call makes or receives, but it can track their locations and establish a person’s travel patterns.

Owsley often felt government agencies acted too aggressively to get the warrants. He said they took advantage of at least two things: the law was unclear on the limits of how the Fourth Amendment applied to Digital Age communication; and some judges lacked the tech savvy to grasp how someone’s privacy might be invaded.

“You’ve got the government coming to you saying they need this fast, fast, fast,” Owsley, now a law professor at the University of North Texas-Dallas, said in an interview. “But you don’t have the adversarial process to push back on that.”

Indeed, there’s no defense attorney to resist a warrant when the holder of an email or cellphone account doesn’t yet know they’re a suspect.

That’s why, Owsley said, he and other magistrates felt compelled to make a show with their opinions.

“You’re getting the message out to other people in the system about how these issues should be dealt with,” he said. “This is telling the government, ‘You can’t keep overstepping your boundaries.’ 

Analysts say the revolt against broad digital searches began about 10 years ago.

“Magistrates become well-known nationally for taking on the federal government with their searches,” said Georgetown University law professor Paul Ohm, who was cited in Waxse’s email warrant denial. “These are the judges who deal with this every day. And they’re the first ones to notice when the law isn’t clear.”

They’ve signaled to ask for less when dealing with, as Waxse puts it, the “privacies of life.” Higher courts may ultimately push for increasingly detailed protocols before a search. Looking for evidence of software piracy, for instance, then only ask to sift through email with keywords that deal with computer programs, software firms and pirating websites.

“It’s going to take time,” said Joseph Thai, a University of Oklahoma law professor who studies technology and privacy. “These are big issues.”

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