A federal judge in Silicon Valley took the unusual step last week of rejecting a routine email search request, and suggested that Google(s goog) and the government take steps to halt the now-routine practice in which tech companies hand over the entirety of their customer’s cloud-based computer accounts.
“The Technorati are … everywhere,” wrote U.S. Magistrate Judge Paul Grewal. “And yet too few understand, or even suspect, the essential role played by many of these workers and their employers in facilitating most government access to private citizen’s data.”
The words introduced a six-page decision in which Grewal refused to issue an order that would have forced Google to hand over the email account of a government employee suspected of corruption. Grewal ordered the details of the investigation, including the name of the suspect, to be redacted but stated that the refusal order should be published.
Grewal’s order comes two months after a judge in Washington, D.C. blocked a similar request for a customer’s Apple (s aapl) account, declaring it to be “repugnant” to the Constitution. Grewal noted that the “substance of the application” in the Gmail case had already been before the DC judge, and that the government had “come west” to engage in “judge-shopping.”
Grewal’s unusual order is also the latest flare-up in what the Washington Post styled the “Magistrate’s rebellion,” in which federal judges in multiple states have begun to balk about the scope of the search warrants that law enforcement agencies routinely demand.
The problem for these judges is that an order for a person’s Google (or Apple or Facebook or Yahoo, etc) account automatically delivers an enormous trove of data — much more than the scope of the investigation. In the Gmail case, Grewal noted that the government hasn’t even put a date limit on its request.
Should Google do more?
Grewal’s ruling also includes a discreet swipe at Google:
“While Google has publicly declared that it challenges overbroad warrants, in three-plus years on the bench in the federal courthouse serving its headquarters, the undersigned has yet to see any such motion.”
The comments appears intended to prod Google to take more active steps in challenging the warrant process. Google did not immediately return an email request for comment.
In the tech industry, Google has been a leader in publishing so-called Transparency Reports that show how often governments demand information about users. In the case of the search warrants, however, Google (and the rest of Silicon Valley) do not appear to be actively challenging them.
The problem of overly-broad warrants is not, however, easy to solve. As Grewal acknowledged, law enforcement has, for practical reasons, long relied on a “seize first, search second” approach to computer-related investigations — and is now doing the same when it comes to cloud-computing.
You can read more details in the order, first spotted by The Recorder, in 2 PDF’s below. Denizens of the Bay Area will enjoy the local color at the outset. (Sample phrases: “Double decker buses pulse with their Wi-Fi … humble downtown San Jose taqueria as the overpriced Palo Alto cafe)