United States v. Info. Associated With Email Account (Warrant)

• Decision Date: 27 March 2020
• Docket Number: CRIMINAL ACTION NO. 19MJ2012
• Citation: 449 F.Supp.3d 469
• Parties: UNITED STATES of America v. INFORMATION ASSOCIATED WITH EMAIL ACCOUNT (WARRANT)
• Court: U.S. District Court — Eastern District of Pennsylvania

449 F.Supp.3d 469

UNITED STATES of America

v.INFORMATION ASSOCIATED WITH EMAIL ACCOUNT (WARRANT)

CRIMINAL ACTION NO. 19MJ2012

United States District Court, E.D. Pennsylvania.

Signed March 27, 2020

OPINION

WENDY BEETLESTONE

On December 2, 2019, a magistrate judge issued a warrant pursuant to the Stored Communications Act ("SCA"), 18 U.S.C. § 2701, et seq. , to search Petitioner's email in support of an ongoing investigation of healthcare fraud and wire fraud. The warrant required Oath Inc., the company that runs Petitioner's email account, to turn over the requested information. On December 18, 2019, Petitioner learned of the warrant from Oath, which advised him that it would respond to the warrant within seven calendar days unless he filed a challenge to the warrant. On December 20, at Petitioner's request, Oath provided Petitioner with a copy of the warrant.

After some back and forth with the government in which the Petitioner's attorney sought unsuccessfully to negotiate the terms of production – particularly with respect to a privilege review of the documents – on December 24 he filed an emergency motion to intervene, stay execution of the search warrant, and quash the warrant, or in the alternative for a protective order permitting defense counsel to conduct a privilege review. The magistrate judge denied the motion but granted Petitioner's emergency motion to stay pending appeal to the district court.

Petitioner's "appeal" is now before this Court. Petitioner's arguments are that the magistrate judge should have quashed the warrant or provided a detailed rationale as to why it did not do so; that the information the government seeks is stale (in that the most recent information requested is over one-and-a-half years old); and that his counsel should be permitted to review information for privilege before any materials are handed over to the government rather than the "taint team" planned by the government to shield privileged material from the investigation.

The government contends that the magistrate judge's jurisdiction to issue the search warrant arises directly from 28 U.S.C. § 636(a), the statute which lays out the authority and duties of magistrate judges as explicated in Federal Rule of Criminal Procedure 41(b). More specifically, the Government argues that the source of authority to issue the warrant in this case is found in Subsection 636(a)(1), which provides that:

(a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law–

(1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Court ....

Petitioner, on the other hand, argues that the warrant was issued pursuant to § 636(b), specifically Subsection (b)(3), which provides that a "magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."

The distinction matters because whereas when a magistrate exercises authority under Subsection 636(a) he or she is the court of first resort – in other words is acting without the need for designation or referral by a district judge – in proceeding under any matter pursuant to Subsection 636(b), their authority stems from such a designation or referral. See 28 U.S.C. § 636(b)(1)(A) (authorizing magistrates to hear and determine non-dispositive pretrial matters pending before the court upon authorization by a district judge); 28 U.S.C. § 636(b)(1)(B) (same with respect to magistrate judges conducting hearings, including evidentiary hearings, and submitting proposed findings of facts and recommendations on dispositive motions to the district court).

Most of Section 636(a) delineates specific areas of magisterial authority – such as determining whether a defendant should be released on bail, trying persons charged with misdemeanors, and sentencing defendants for petty offenses and class A misdemeanors, 18 U.S.C. § 636(a)(2)-(5), but the language of Subsection (a)(1) is broader in that it grants magistrates "all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts."

The use of the word "commissioners" in a statute concerning the authority of magistrate judges has historical dimensions. Indeed, it harks back to 1793 when Congress first authorized circuit court judges to appoint "discreet persons learned in the law" to take bail in federal criminal proceedings. Over the course of the nineteenth century, Congress periodically expanded the powers of these persons – who became known as commissioners – to enforce federal laws. In 1896, Congress established the formal office of "United States Commissioner," and transferred the power to appoint commissioners from the circuit to the district courts. Frustrated with the lack of uniform standards for appointment and desiring to expand the judicial responsibilities of the commissioners, in 1968 Congress passed the Federal Magistrates Act, which abolished the office of United States Commissioner and substituted for it the office of United States Magistrate (later Magistrate Judge). See A Guide to the Legislative History of the Federal Magistrate Judges System , Admin. Office of the United States Courts, at 1-15 (Sept. 2009).

Through these changes, Congress sought to ensure that magistrate judges continued to exercise the same powers as commissioners. See S. Rep. No. 371, 90th Cong., 1st Sess. 11 (1967) (explaining that the committee believed it was "neither practical nor desirable simply to abolish the commissioner system and transfer the functions now performed by that office to the U.S. district court judges"). Section 636(a)(1) was thus included in the statute to preserve the historic powers and duties of commissioners. In re Search of Scranton Hous. Auth. , 487 F. Supp.2d 530, 533 (M.D. Pa. 2007) ; see also A Guide to the Legislative History of the Federal Magistrate Judges System, supra , at 17-18.

One such historic power is the power to issue search warrants. When the Federal Rules of Criminal Procedure were enacted in 1944, Rule 41 authorized search warrants to be issued by a district court judge or a commissioner.¹ Issuing search warrants thus falls under the powers granted by § 636(a)(1).

Turning to the warrant issued in this case, the Government applied for the warrant pursuant to the SCA. The SCA was passed in the wake of congressional concern about protecting individual's privacy interests in information held online by third parties. See In re Search Warrant No. 16-960-M-1 to Google , 275 F. Supp.3d 605, 609 (E.D. Pa. 2017) (citing S. Rep. No. 99–541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557). Thus the SCA "was born from congressional recognition that neither existing federal statutes nor the Fourth Amendment protected against potential intrusions on individual privacy arising from illicit access to stored communications in remote computing operations and large data banks that stored e-mails." In re Google Inc. Cookie Placement Consumer Privacy Litig. , 806 F.3d 125, 145 (3d Cir. 2015) (internal quotation and citation omitted). The SCA addressed this issue through the creation of "a set of Fourth Amendment-like privacy protections by statute" for electronic communications held by two types of network service providers: providers of "electronic communication service" and providers of "remote computing service." See Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It , 72 Geo. Wash. L. Rev. 1208, 1212-14 (2004).

Under § 2703 of the Act, Congress established three separate methods for the Government to request electronic information: (1) "a warrant issued using the procedures described in the Federal Rules of Criminal Procedure," 18 U.S.C. § 2703(a), (b)(1)(A), (c)(1)(A) ; (2) a "court order for disclosure" issued based on an offer by the Government of "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation," id. § 2703(d) ; and (3) "an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena," id. § 2703(b)(1)(B)(i), (c)(2). Which of these three the Government needs to obtain depends on the type of information it seeks, with more intrusive disclosures requiring a higher showing by the Government, e.g. , a warrant.

In this instance, the Government requested a search warrant, the highest form of protection authorized by the SCA. As required by the SCA, the Government's application was made pursuant procedures established in the Federal Rules of Criminal Procedure, specifically Rule 41(c). Thus when the magistrate issued the warrant in this case, he was acting pursuant to his historic duties to issue warrants as reflected in § 636(a)(1).

The propriety of the magistrate judge issuing the warrant is further confirmed by the text of the SCA. The SCA allows the issuance of warrants by any "court of competent jurisdiction." Id. § 2703(b)(1)(A). It defines a "court of competent jurisdiction" as "any district court of the United States (including a magistrate judge of such a court ) ... that ... has jurisdiction over the offense being investigated." Id. § 2711(3)(A) (emphasis added).² Thus, for this reason and for the reasons set forth above, the magistrate judge was authorized by statute, and not by designation or referral of a district judge, to issue the warrant.

Having determined the magistrate's source of authority to issue the warrant, the next question is whether there is a mechanism under Section 636(a)...