Together, our personal technology's value and the related privacy issues has become a new sort of frontier for law enforcement and our courts. And the parameters around law enforcement's access — and whether access is even given — must be dealt with.
For U.S. Magistrate Judge Stephen Smith, who began his term as a magistrate judge in Houston, Texas, in 2004, computer and device searches present an interesting challenge. When he started the federal judgeship, he said the rules of around technology were still solidifying and opinions were difficult to come by.
“Back in 2004, there wasn’t anything out there as far as giving us guidance as to how to interpret this bizarre complex statute called the Electronic Communications Privacy Act, and that was very frustrating,” he said during a panel discussion at Stanford University Nov. 2. “There weren’t any published opinions, much less Court of Appeals opinions, and Supreme Court opinions were nowhere to be seen.”
In the 12 years that have followed, precedent has been set in a variety of cases, but the lack of strong technical knowledge by many judges leaves something to be desired.
Smith described his role as being on the “firing line” of new surveillance and digital recovery methods. While he is quick to point out that his duty is protecting the Constitution above all else, he admits the technical nature of some of the requests require outside help and a willingness to seek deeper understandings of the techniques.
“I’m still clinging very strongly to my flip phone; believe it or not, I don’t have a smartphone … If somebody like me has to chart their own course, that’s a disturbing thing,” he joked.
Generally speaking, when applying for a warrant, a law enforcement agent would file an affidavit citing the validity of the request and work with a U.S. attorney to file an application for the warrant with the magistrate judge.
Because much of the warrant process is done on the front end of an investigation, Smith said he and his colleagues must act as the backstop against unnecessary searches and carefully weigh what is at risk.
“We need to take time to get it right," he said. "We take an oath to uphold the Constitution, just like the Supreme Court justices. And so if we are presented with something that violates the Fourth Amendment, we can’t sign it. We shouldn’t sign it."
The secrecy of the process — to protect the integrity of the investigation — and the lack of defense counsel means magistrate judges must question the scope and validity of each application that crosses their desks.
Where computer searches are requested, Smith said an extra measure of caution is required. Because more and more information is available on personal computers, each application must be carefully weighed to ensure “fishing expeditions” are not permitted on the part of law enforcement.
“Where I struggle, more commonly than other areas, is when they are asking to search computers because there will be a crime, they’ll probably have enough probable cause to justify a search of the computer, but I worry that these days, well, everything is on computer,” he explained. “I struggle with that, I really do.”
Though the federal judge said he considers these issues carefully with each application, a general technical understanding and workload can become an issue as judges negotiate the barrage of applications that come their way. On an average day, Smith said he sees between 10 and 12 warrant applications.
“Part of the problem is that many judges, who are less attuned to these issues than I am, don’t exactly know what they are being presented with,” he explained. “You can get a very anodyne term like ‘network investigative technique’ or NIT. What the heck does that mean?"
And that's something that easily can be glossed over, he added, especially if a judge is busy that day.
“I’m not sure that I or even most magistrate judges have enough technical background to push back,” Smith said. “We need to understand that we are not authorizing these massive general warrant searches that could potentially infect hundreds if not thousands of innocent computers.”
Moving forward, Smith said his hopes are two-fold: He wants to see tech-knowledgeable lawyers percolating up to the bench, and he hopes transparency within the process will become the norm. He openly admits the secrecy of the federal warrant process is a necessity for many of the investigations, but he also said the public has a right to know how the courts and government agencies are operating around pervasive technologies.
“One thing that bothered me starting the job was the lack of information given to the public about what we do with these applications," he said. "For all they know, we are just sitting there with rubber stamps granting all these things, and I don’t think that’s the case.”
In his jurisdiction, Smith said modernization would be required to take the process from where it stands now — in an analog log — to a digital and transparent process.
“We need to make our warrant docket just as publicly accessible as the civil and criminal docket is. Obviously you can’t immediately disclose the warrant applications or the tracking device applications because you’re going to blow the investigation,” he explained. “So some limited degree of sealing is necessary, but it doesn’t need to be sealed forever. It seems to me that there is some information about that application that ought to be available to the public immediately.”
