Over the past year, the actions by two U.S. judges may at last signal a change of direction in the battle to curtail government surveillance of electronic data. It has been all too common for judges to rubber-stamp law enforcement’s requests for warrants from electronics firms in order to gather information on its clients. The judges, both U.S. Magistrates have in their rulings refrained from arbitrarily granting government requests for access to email accounts and cell phone data. Their actions are framed against the landscape of the legal and political global debate raging since Edward Snowden informed the world about the NSA’s snooping practices.
For years, the governments modus operandi has been to obtain all information and then cherry-pick what it wanted to keep to suit the particular investigation.. The judges, John Facciola in Washington, D.C. and David Waxse in Kansas City, Kan., have raised the bar with law enforcement requests from companies for data. They have decided that the government must modify its requests if it is to be in compliance with the Fourth Amendment’s protection against unreasonable searches. It is a blow to the law enforcement practice of obtaining all electronic information on a person under surveillance and then using names and key words to discern what may be useful to the investigation.
Both Facciola’s and Waxse’s decisions seek to deny the government unbridled access to information unless they meet certain additional criteria. They suggest that ISPs and other web firms could perform searches based on guidelines from the Justice Department. Then, release only apparent pertinent data. Alternatively, they suggest a process in which a court appointed official does the initial search thus providing a buffer between investigators and bulk data. The government, as expected, disagrees with these suggestions. Unfortunately for privacy lovers, there are too many judges in the law enforcement camp. And they are all too willing to grant the government broad latitude when seeking warrants. Part of the problem is that many judges are technically illiterate- they lack the knowledge to challenge law enforcement officials to be more forthcoming.
But the actions by Facciola and Waxse give hope that the governments practice of throwing broad warrant requests at judges and getting instant compliance may be ending. This will only happen in great numbers if judges better understand recent technological advances and how ISPs operate. And that will only happen if there is enough public outcry against law enforcement’s encroachment. For if there is to be protection under the Fourth Amendment there must be a restoration of the checks and balances the Founding Fathers installed centuries ago. More judicial courage and more judges like John Facciola and David Waxse are needed.