The New York Sun - Feb 28, 2006
http://informationclearinghouse.info/article12131.htm
Patriot Act E-Mail Searches Apply to Non-Terrorists, Judges Say
BY JOSH GERSTEIN
Staff Reporter of the Sun
02/28/06 "New York Sun" -- Two federal judges in Florida have upheld the
authority of individual courts to use the Patriot Act to order searches
anywhere in the country for e-mails and computer data in all types of
criminal investigations, overruling a magistrate who found that Congress
limited such expanded jurisdiction to cases involving terrorism.
The disagreement among the jurists about the scope of their powers simmered
for more than two years before coming to light in an opinion unsealed
earlier this month. The resolution, which underscored the government's broad
legal authority to intercept electronic communications, comes as debate is
raging over President Bush's warrantless surveillance program and the duties
of Internet providers to protect personal data.
A magistrate judge in Orlando, James Glazebrook, first questioned the
so-called nationwide-search provision in 2003, after investigators in a
child pornography probe asked him to issue a search warrant requiring a
"legitimate" California-based Web site to identify all users who accessed
certain "password-protected" photos posted on the site. The Web provider was
not named in public court records.
Magistrate Glazebrook said that in passing the Patriot Act, formally known
as the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act, Congress made clear its
focus was on terrorism. He said there was nothing in the language Congress
adopted in the days after the September 11, 2001, terrorist attacks that
suggested the nationwide-search provision should apply to garden variety
federal cases.
"The statutory language is clear and unambiguous in limiting district court
authority to issue out-of-district warrants to investigations of terrorism,
and that language controls this court's interpretation. The government has
shown no legislative intent to the contrary," the magistrate wrote. He also
noted that many of the examples given during legislative debate involved
terrorism. The then chairman of the Senate Judiciary Committee, Senator
Leahy, a Democrat of Vermont, described the nationwide-search language as
applying in terrorism cases, the court noted.
Magistrate Glazebrook denied the search warrant, but it was recently
disclosed that the government appealed to a federal judge, G. Kendall Sharp,
who granted it without explanation.
The scenario played out again late last year, after prosecutors presented
Magistrate Glazebrook with an application for a search warrant directed to a
Sunnyvale, Calif.-based Web portal, Yahoo. The government asked that Yahoo
produce web pages, documents, and usage logs pertaining to two e-mail
addresses and a Web site allegedly linked to an Orlando man, Earl Beach,
under investigation for involvement in child pornography. Magistrate
Glazebrook allowed searches of Mr. Beach's home and computers, but again
rejected prosecutors' request to acquire data located across the country.
"Congress has not authorized this court to seize out-of-district property
except in cases of domestic or international terrorism," the magistrate
handwrote on the application.
Again, prosecutors appealed. Judge Gregory Presnell took up the question and
concluded that "it seems" Congress did intend to authorize nationwide search
warrants in all cases, not just ones pertaining to terrorism. However, the
judge acknowledged that the language Congress used was far from clear. "The
court rejects the assertions made by both the United States here and the
magistrate judge... that the statutory language is unambiguous. Although the
court ultimately comes to a determination regarding the meaning of this
language, by no means is it clearly, unambiguously or precisely written,"
Judge Presnell wrote.
The chief federal defender in Orlando, R. Fletcher Peacock, said the dispute
was a straightforward one pitting literal interpretation against legislative
intent. "Judge Presnell was more willing to go behind the language of the
statute and look at the statutory intent, and clearly Judge Glazebrook was
not," the attorney said.
One of the most striking aspects of the dispute is that there appears to be
no other published court ruling addressing the nationwide-search provision,
known as Section 220. The magistrate involved cited no cases directly on the
point and neither did the government.
An attorney with a group that pushes for online privacy, the Electronic
Frontier Foundation, said yesterday that the lack of published cases on the
subject reflects the fact that search warrant applications are presented
outside the presence of defense lawyers, often before a defendant even knows
he is under investigation. "It's fairly typical that search warrants for
electronic evidence would be kept under seal," the privacy advocate, Kevin
Bankston, said. "In most cases, they wouldn't be reported."
Mr. Bankston said there is no question that the Justice Department wanted
the Patriot Act to include nationwide-search authority for all crimes, but
whether lawmakers accomplished that task is another question. "I don't know
that Congress knew what it was voting on," he said.
Civil libertarians have objected to the nationwide-search provision on the
grounds that it allows prosecutors the discretion to pick judicial districts
where judges are seen as more friendly to the government. Critics of the
Patriot Act have also warned that allowing search warrants to be filed from
across the country will discourage Internet service providers from fighting
such requests even when they may be unwarranted.
"The only person in a position to assert your rights is the ISP and if it's
in their local court, they are more likely to challenge it if it is bad or
somehow deficient," Mr. Bankston said.
A spokesman for the prosecutors did not return a call seeking comment for
this story. However, the Justice Department has said the nationwide-search
provision was "vital" to its investigation of the gruesome murder in 2004 of
a pregnant Missouri woman, Bobbie Jo Stinnett, whose unborn child was cut
from her womb with a kitchen knife. Investigators claim that they used the
Patriot Act authority to quickly obtain email evidence from an Internet
provider across state lines in Kansas. That data led them to a woman who
later confessed to the attack, Lisa Montgomery.
In his ruling, Judge Presnell did not mention that episode, but suggested it
was simpler for the courts and prosecutors to issue all warrants in a case
from one place.
"As a matter of judicial and prosecutorial efficiency, it is practical to
permit the federal district court for the district where the federal crime
allegedly occurred to oversee both the prosecution and the investigation
(including the issuance of warrants) thereof," he wrote. The government has
also complained that the former procedure caused court backlogs and delays
in jurisdictions, like northern California, that are home to many Internet
companies.
It is unclear whether any charges resulted from the 2003 investigation, but
the suspect involved in the disputed 2005 search, Mr. Beach, was indicted
earlier this month on charges of possessing and distributing child
pornography. He has pleaded not guilty. A trial is set for April.
Magistrate Glazebrook said in a brief interview yesterday that he could not
discuss the specific cases that prompted the legal disagreement over the
Patriot Act, but that he expects the question to arise again. "It is
certainly something that will come up," he said. "There are a lot of
interesting issues surrounding that."
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