Department lawyers filed an appeal late Monday, asking a federal district judge (one step above a federal magistrate judge) to grant an application to search and seize several months of emails from a suspect’s account, as part of an investigation into potential kickbacks involving a defense contractor.
Magistrate Judge John Facciola had twice denied the application, which sought the information from Apple Inc.AAPL -0.41%, the suspect’s email provider.
Judge Facciola’s concern lies with a two-step process used by the government. First, investigators obtain from third parties such as Apple or Google Inc. all emails and other information tied to an account they believe contains evidence. Once the batch is in the hands of the government, agents sift through it using keywords and names, and seize emails deemed relevant.
The first step, according to Judge Facciola, places too much private information in the hands of the government. He has said in his rulings that Apple could do the initial search, with government-provided search terms and guidance, and turn over to investigators only the information that falls within the scope of the search warrant.
The Justice Department brief filed Monday says that the two-step process is enshrined in the Federal Rules of Criminal Procedure, with no requirement that the government first seek an alternative means of acquiring evidence that offers greater privacy.
“[No] court has previously rejected the two-step process for email search warrants and required the government to delegate execution to the third-party service providers,” the brief says. “Because that requirement is unprecedented and contrary to Fourth Amendment principles, it should be overturned.”
The Justice Department strenuously objected to placing any investigative responsibility on service providers.
“Executing a search warrant is not a ministerial procedure that can be delegated to untrained, non-governmental personnel,” the brief says. “Messages that might appear innocuous to someone without knowledge of the case could actually be crucial evidence.”
Judge Facciola declined to comment, through one of his staff members.