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
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
"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."