Magistrate waxes poetic while rejecting Gmail search request

A federal magistrate in San Jose has rejected a bid by prosecutors to search an unidentified target's Google e-mail account, criticizing the "seize first, search second" request as overbroad and unreasonable under the Fourth Amendment.

U.S. Magistrate Paul Grewal could have simply denied the request in a stark order without preamble or explanation.

Instead, Grewal waxed poetic, beginning his seven-page ruling Friday by painting a portrait of how each day he "joins the teeming masses of the Bay Area on Highway 101 or 280," marked by "lengthy queues" at exits in Mountain View, Sunnyvale and Cupertino. "The Technorati are, in short, everywhere" in Silicon Valley, from the "humble downtown San Jose taqueria" to the "overpriced Palo Alto cafe," he said.

Grewal said he was hammering home a point, that "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 citizens' data."

The magistrate said he had reviewed an application by the government to search the Gmail account of a person suspected of stealing government funds.

The judge noted that "no defendant yet exists, as no case has yet been filed. There are no hearings, no witnesses, no briefs and no debate. Instead, a magistrate judge is left to predict what would or would not be reasonable in executing the warrant without any hard, ripe facts. This is hardly a recipe for success."

Although Grewal said he did find probable cause to believe that the Gmail account in question in fact contained evidence of theft, "what of all the data associated with the account which supplies no such evidence whatsoever?"

Grewal blasted the request as overreaching under the Fourth Amendment, which bans unreasonable searches. He said federal officials failed to provide any date restriction, other than to say the alleged crimes began in 2010.

"Nor has the government made any kind of commitment to return or destroy evidence that is not relevant to its investigation," Grewal wrote.

"This unrestricted right to retain and use every bit Google coughs up undermines the entire effort the application otherwise makes to limit the obvious impact under the plain view doctrine of providing such unfettered government access," he wrote.

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Magistrate waxes poetic while rejecting Gmail search request