Magistrate Judge Targets DOJ’s Search ≠ Seizure Theory

The second-and-third-to-last line of Magistrate Judge John Facciola’s opinion responding to a warrant application for information from Apple reads,

To be clear: the government must stop blindly relying on the language provided by the Department of Justice’s Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual. By doing so, it is only submitting unconstitutional warrant applications. [link added, h/t Mike Scarcella]

Over the course of the opinion — which denies a warrant for three entire months of emails, plus account information and correspondence with Apple for a criminal investigation into Defense Contractor kickbacks — Facciola lays out what, over the last 6 months he has found to be a problem with DOJ’s search and seizure guidelines.

  • In the Matter of the Search of Information Associated with [redacted] Stored at Premises Controlled by Yahoo! (13-MJ-728; September 25, 2013) in which Facciola ordered the government to return data not within the scope of the request to Yahoo
  • In the Matter of an Order Authorizing Disclosure of Historical Cell Cite Location (13-MC-199, 13-MC-1005, and 13-MC-1006; October 31, 2013) in which Facciola warned the government he would reject future warrant applications because of “generic and inaccurate boilerplate language”
  • In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron Alexis (13-MJ-742; November 26, 2013) in which Facciola objected to government’s two-step procedure to search the Navy Yard shooter’s to get all of Alexis’ email
  • In [redacted} (14-MC-228; this case) in which the government listed a bunch of email data to be “disclosed by Apple” but then laid out the authority to “seize” (implicitly all) the underlying emails

Here’s how Facciola describes what is common to all these warrant applications.

In essence, the applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information.

He goes on to describe that the government uses essentially the same argument it uses in its NSA dragnets to claim that seizing all the phone records from a company don’t count as seizing them.

Any search of an electronic source has the potential to unearth tens or hundreds of thousands of individual documents, pictures, movies, or other constitutionally protected content. It is thus imperative that the government “describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).

Here, the government has adequately described the “items to be seized”—but it has done so in the wrong part of the warrant and in a manner that will cause an unconstitutional seizure. By abusing the two-step procedure under Rule 41, the government is asking Apple to disclose the entirety of three months’ worth of e-mails and other e-mail account information. See Application at 14-15. Yet, on the very next page, it explains that it will only “seize” specific items related to its criminal investigation; it goes so far as to name specific individuals and companies that, if mentioned in an e-mail, would make that e-mail eligible to be seized. Id. at 15. Thus, the government has shown that it can “describe the items to be seized with [] much specificity”; it has simply chosen not to by pretending that it is not actually “seizing” the information when Apple discloses it. See Facebook Opinion [#5] at 9-10 (“By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to ‘seize’ everything that is given to it.”).

As this Court has previously noted, any material that is turned over to the government is unquestionably “seized” within the meaning of the Fourth Amendment. See Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989) (noting that a “seizure” occurs when an object is intentionally detained or taken). The two-step procedure of Rule 41 cannot be used in situations like the current matter to bypass this constitutional reality because the data is seized by the government as soon as it is turned over by Apple.


What the government proposes is that this Court issue a general warrant that would allow a “general, exploratory rummaging in a person’s belongings”—in this case an individual’s e-mail account. Coolidge, 403 U.S. at 467. This Court declines to do so.

This opinion will likely result only in DOJ submitting a new application. It’ll clean up its ways or submit applications in other districts to avoid Facciola. This opinion, by a Magistrate, certainly won’t establish the principle that as soon as DOJ obtains data, it has seized it under the Fourth Amendment.

Still, given how centrally this claim that seizures don’t equal seizures, perhaps the obvious logic of Facciola’s stance will encourage other judges to stop twisting the normal meaning of seize to be solicitous to government demands.

10 replies
  1. orionATL says:


    maybe the federal judiciary is wakening from the long hypnosis induced by doj’s monotonic “national security need”, “national security need”, “national security need”…

    at least one can dream :)

  2. TomVet says:

    What is the name of that refrigerator magnet game, similar to Anagrams only with whole words instead of letters, where you rearrange them to make new meanings from the original?

    The law says you must have reason to suspect a person and must think it probable that you will find the things described in the place to be searched in order to justify a warrant. DOJ, with a few clever movements, makes that out to be “We need this warrant because we think it probable that we will find things to give us reason to suspect this person.”

    Fun and games!

  3. Peterr says:

    This opinion will likely result only in DOJ submitting a new application. It’ll clean up its ways or submit applications in other districts to avoid Facciola.

    They might submit applications to judges in other districts, but I think you can be pretty sure that Apple, Facebook, Yahoo, and anyone else who wants to fight being served with warrants and orders like these will make sure that Facciola’s opinion gets brought to the attention of those new judges.

    And from what I hear, judges don’t like it when lawyers try to venue-shop in order to get a favorable ruling.

  4. john francis lee says:

    ‘… which denies a warrant for three entire months of emails, plus account information and correspondence with Apple for a criminal investigation into Defense Contractor kickbacks …’

    Facciola knows who he works for. The DoJ is legal boutique.

  5. chronicle says:

    Notwithstanding Marci’s daily analysis of 1% of that which tomorrow will become a digital record of America’s fall into oblivion, I still want to reference the other option of understanding her analysis. It’s called the 2nd Amendment. Whether you believe it or not is up to you.

    • P J Evans says:

      How does the second apply to this? It’s about a well-regulated militia being the reason for allowing people to own firearms. It isn’t about allowing people to become vigilantes or overthrow the government.

      • chronicle says:

        quote:”How does the second apply to this?”unquote Easy Mr. 2+2=?. My point is simple. The founders didn’t add the 2nd Amendment to protect your right to obliterate squirrels. Contrary to what that jello between your ears tells you, the founders knew PRECISELY what it would take to overthrow a fucking tyrannical government when ALL ELSE FAILS. THAT is why the wrote the Second Amendment.

        As to the relevancy of Marci’s analysis, given the vector of the Surveillance State, at some point in time, the USG is going to cross the Waco2 line in the sand, at which time, certain people in this country will no longer tolerate tyrannical USG psychopaths murdering children. Given last year alone, there we 80 THOUSAND kick the door in SWAT assaults on American homes, that resulted in many many murders of innocent people, and the present collectivist attack on the 2nd Amendment nation wide, add Marci’s continuing analysis of the blatant assault on the rule of law by the DOJ, and Judicial acquiescence to the “national security” bullshit, it doesn’t take an Eienstein to see where this country is headed. Now, the day the USG starts going door to door to confiscate weapons, tell me when Marci’s analysis is going to force the government to change it’s vector? Comprende Benedict?

        • orionATL says:


          – in the first place you are a bawling, blithering idiot. and unhinged to boot, if you really believe the shit you’re slinging.

          – more importantly to this weblog, you are a provocateur and a troll. your interest in the research, analysis, and commentary here is clearly feigned. it’s time for you to be dropped thru the stage trap door, funny man.

        • bmaz says:

          Alright there. Let’s get a few things straight. First off, the head proprietor of this blog is named Marcy, not “Marci”.
          Secondly, PJ Evans is a VERY longtime commenter and friend of Emptywheel, and said nothing whatsoever untoward to you to warrant your tone in response. Calling PJ “Benedict” is not only asinine, but belligerent to a degree we simply do not do here. That is not acceptable. Not at all.
          Thirdly, the 2nd Amendment while, according to the Supreme Court interpretation, protecting the right of individuals to possess and bear arms, was indeed drafted and included primarily to, per the words, foster well armed militias for the protection of the government. Not the overthrow of it by nutbags. And if you think you and a few of your oh so tough buds can take on the US government with your little gun show props, you are leading the pack for a Darwin Award.
          So, in sum, don’t pull that crap here.

  6. Joanne Leon says:

    I find this encouraging, even if it doesn’t establish the principle that seizing the data is seizing the data! It seems like such a no brainer.

    Even if a higher court or a number of different judges issued similar rulings, our most transparent administration, or the next one serving DeepState, would probably establish some kind of national security exception.

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