In rare public order, judge denies DOJ access to murder suspects’ private data

July 20, 2016

U.S. Magistrate Judge Michael Harvey of Washington, D.C., is a brave man.

It cannot have been easy for the judge to deny the Justice Department’s sealed application for access to Facebook, Gmail, WhatsApp and other online accounts supposedly connected to nine suspects involved in the murder of a U.S. citizen abroad.

Several of the alleged killers have been arrested by a foreign government and have supposedly confessed to involvement in the deadly attack.

The Justice Department told Judge Harvey that it needs to see certain information from the online accounts – including subscriber data, activity logs and email headers, but not content – to investigate the attack.

Federal magistrate judges field tens of thousands of such secret surveillance requests every year, according to a 2012 paper, “Gagged, Sealed and Delivered,” by U.S. Magistrate Stephen Smith of Houston. Overwhelmingly, the applications are granted without ever becoming public.

Judge Harvey chose a different path. When prosecutors failed to meet what he considers to be the evidentiary standard of the Electronic Communications Privacy Act, he rejected the surveillance request. And then he took the extraordinary step of making his opinion public. He even changed the caption of the case to be sure it’s clear his ruling is not sealed.

Whether you think the magistrate was right or wrong to deny the government access to electronic records in what appears to be a terrorism investigation, you have to agree that by contributing his ruling to the public privacy-right debate, Judge Harvey showed the courage of his convictions. “No matter what happens in this particular case,” said Matthew Segal of the Massachusetts ACLU, whose blog was the first to report on the magistrate’s ruling, “the decision will promote a healthy and more public discussion.”

Judge Harvey isn’t the first magistrate judge to go public in a secret surveillance case. His predecessor on the D.C. bench, now-retired U.S. Magistrate Judge John Facciola, famously undertook a campaign against what he considered overly broad Justice Department demands for secret surveillance orders in 2014, issuing a series of orders explaining why he believed the government’s applications were unconstitutional.

Harvey cited a 2011 ruling by a federal district judge in his court who “expressed grave doubts” about the government’s request for cellphone data from an armed robbery suspect who apparently didn’t use a cellphone in connection with the crime.

Another federal magistrate, U.S. Magistrate Judge James Orenstein of Brooklyn, ruled this spring that the Justice Department cannot compel Apple to help investigators unlock the iPhone of a convicted drug dealer. Enough other magistrates have rejected government applications for electronic data to prompt a catchphrase: the “magistrates’ revolt.”

But according to the ACLU’s Segal, who has been scouring dockets, unsealed opinions rejecting government surveillance applications are extreme rarities. “This really important issue of privacy rights is not being litigated in public,” he said.

Judge Harvey’s ruling also goes into unusual detail about the government’s request, revealing that Justice is investigating nine suspects in a foreign attack and that a foreign government has made arrests in connection with the murder. (The judge gave the Justice Department a chance to review the opinion and request redactions before he published it on July 18; assistant U.S. attorneys Michael Friedman and Thomas Gillice of the National Security Section of the Washington U.S. attorney’s office proposed no redactions.)

What the government failed to provide, in the magistrate’s view, is “specific and articulable facts” tying the electronic records it wants to its ongoing criminal investigation. Judge Harvey said that even after he gave prosecutors an opportunity to amend the application, they didn’t meet the standard.

“The government does not appear to have any idea at this point whether the records it seeks will advance its investigation; it represents only that the records may show ‘whether and how’ the subjects communicated with each other,” he wrote. That’s not a good enough rationale, the judge said, to order the disclosure of years of data from 21 electronic accounts.

Harvey specifically found that a foreign government’s supposedly related arrests do not justify sweeping orders for electronic data. “Applications for legal process in this country, even when based on representations provided by foreign authorities, or on evidence procured under foreign legal systems, must comply with U.S. law,” he wrote. “Given this court’s lack of familiarity with other countries’ criminal justice systems, the government would be wise to provide more factual detail in such applications, not less. If foreign authorities are unwilling to provide the United States with sufficient information to meet U.S. legal standards, then the government’s attempt to procure legal process in this country based solely on that foreign-derived information will fail.”

Many fair-minded people will, I’m sure, disagree with Harvey’s conclusion, just as they sided with the government in its dispute with Apple over unlocking the San Bernardino shooter’s iPhone. The privacy rights of terrorism suspects is not a cause that attracts a lot of supporters. And these are unsettling times for people who take unpopular stands. So consider this post my personal thank you to Judge Harvey for subjecting himself to critics by reminding us there are limits on government power, even in the age of electronic surveillance – and by making that reminder public.

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