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    Washington Post: Low-level federal judges balking at law enforcement requests for electronic evidence

    The Washington Post reports on how courts are considering law enforcement officials’ requests for electronic information, requests that affect individuals’ privacy rights:

    Judges at the lowest levels of the federal judiciary are balking at sweeping requests by law enforcement officials for cellphone and other sensitive personal data, declaring the demands overly broad and at odds with basic constitutional rights.This rising assertiveness by magistrate judges — the worker bees of the federal court system — has produced rulings that elate civil libertarians and frustrate investigators, forcing them to meet or challenge tighter rules for collecting electronic evidence.

    Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

    For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations. […]

    Yet he is part of a small but growing faction, including judges in Texas, Kansas, New York and Pennsylvania, who have penned decisions seeking to check the reach of federal law enforcement power in the digital world. Although some rulings were overturned, they have shaped when and how investigators can seize information detailing the locations, communications and online histories of Americans. […]

    Other magistrates who set a high threshold for collecting digital evidence have been overruled on appeal or have seen their rulings modified. Magistrate Judge Lisa Pupo Lenihan, based in Pittsburgh, sided with Smith and Orenstein in requiring a search warrant before cellphone location data was turned over to police. The court’s other magistrate judges signed on as well.

    But a federal appeals court overruled Lenihan in a 2010 decision that allowed magistrates to require probable cause only “sparingly,” in cases that clearly merit it. That left the standard — along with many issues involving what digital evidence the government can collect and how — a patchwork across the country that attorneys sometimes struggle to navigate.

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