Digital Searches, the Fourth Amendment, and the Magistrates' Revolt

Emory Law Journal Emory Law Journal

Volume 68 Issue 1

2018

Digital Searches, the Fourth Amendment, and the Magistrates' Digital Searches, the Fourth Amendment, and the Magistrates'

Revolt Revolt

Emily Berman

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Recommended Citation Recommended Citation

Emily Berman,

Digital Searches, the Fourth Amendment, and the Magistrates' Revolt

, 68 Emory L. J. 49

(2018).

Available at: https://scholarlycommons.law.emory.edu/elj/vol68/iss1/2

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DIGITAL SEARCHES, THE FOURTH AMENDMENT, AND

THE MAGISTRATES’ REVOLT

Emily Berman

ABSTRACT

Searches of electronically stored information present a Fourth Amendment

challenge. It is often impossible for investigators to identify and collect, at the

time a warrant is executed, only the specific data whose seizure is authorized.

Instead, the government must seize the entire storage medium—e.g., a hard drive

or a cell phone—and extract responsive information later. But investigators

conducting that subsequent search inevitably will encounter vast amounts of

non-responsive (and often intensely personal) information contained on the

device. The challenge thus becomes how to balance the resulting privacy

concerns with law enforcement’s legitimate need to investigate crime. Some

magistrate judges have begun including in their warrants for digital searches

limits on how those searches may be carried out—a development that some have

referred to as a “magistrates’ revolt,” and which has both supporters and

detractors. This Article argues that the magistrates’ “revolt” was actually no

revolt at all. Instead, these judges simply adopted a time-honored tool—

minimization—that is used to address a conceptually analogous privacy threat

posed by foreign intelligence collection. This Article further argues that

embracing both the practice and the label of “minimization” will yield at least

two benefits: First, it will recast magistrates’ actions as a new instantiation of a

legitimate judicial role, rather than a novel, potentially illegitimate practice.

Second, it will allow magistrates to draw on lessons learned from the Foreign

Intelligence Surveillance Court’s creative use of minimization to safeguard

Fourth Amendment rights in the intelligence-collection context.

Assistant Professor of Law, University of Houston Law Center. Thanks go to participants in the “Courts

at War” Conference at the University of Texas Law School, D. Theodore Rave, David Kwok, Dave Fagundes,

Kellen Zale, Renee Knake, Gina Warren, James Nelson, and Lonnie Hoffman.

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50 EMORY LAW JOURNAL [Vol. 68:49

INTRODUCTION ............................................................................................... 51

I. D

IGITAL SEARCHES AND THE FOURTH AMENDMENT .......................... 57

A. Digital Searches and the Fourth Amendment ............................. 57

B. The Magistrates’ Revolt ............................................................. 61

II. M

INIMIZATION PROCEDURES: CONGRESS’S RESPONSE TO INEVITABLE

OVER-COLLECTION ............................................................................. 66

A. The Origins of Minimization Procedures ................................... 67

B. The Implementation of Minimization Procedures ...................... 71

1. Minimization in Criminal Investigations .............................. 71

2. Minimization in Foreign Intelligence Surveillance .............. 72

a. “Traditional” FISA ....................................................... 73

b. The FISA Amendments Act: PRISM ............................... 74

c. The FISA Amendments Act: “Upstream” Collection .... 76

d. Metadata Collection ...................................................... 78

III. M

INIMIZATION PROCEDURES: MITIGATING PRIVACY CONCERNS IN

DIGITAL SEARCHES ............................................................................. 82

A. Minimization’s Untapped Potential ............................................ 82

B. The Advantages of Ex Ante Minimization Over Ex Post Judicial

Review ........................................................................................ 86

C. Magistrate Judges’ Authority to Require Minimization

Procedures .................................................................................. 91

ONCLUSION ................................................................................................... 93

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INTRODUCTION

In the 1967 Supreme Court case Berger v. New York, Justice Clark wrote

that, “law, though jealous of individual privacy, has not kept pace with

. . . advances in scientific knowledge.”

In the half-century since he wrote those

words, the gap between technological advancement and the legal regime has

only grown wider. The pace of technological change has accelerated. The role

of technology in Americans’ daily lives has swelled. Yet even in this twenty-

first century world, the speed at which legal change moves remains much as it

has been since the eighteenth century.

When it comes to the Fourth Amendment—which protects against

unreasonable searches and seizures of our “persons, houses, papers, and

effects”—this sluggish pace has proved particularly problematic.

The

information age has generated an avalanche of Fourth Amendment-law

dilemmas

—whether the same rules that apply to searching suitcases at the

border apply to a traveler’s laptop computer;

whether mapping an individual’s

life 24/7 for days on end using cell phone location records requires a warrant;

whether the results of predictive algorithms generated using massive databases

can form the basis of reasonable suspicion;

whether and how the warrant

requirement’s exception for searches incident to arrest should apply to the

contents of an arrestee’s cell phone.

It is up to courts in the first instance to

resolve these questions.

388 U.S. 41, 49 (1967).

U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.”).

See, e.g., United States v. Jones, 565 U.S. 400, 427 (2012) (Alito, J., concurring) (noting that

“[d]ramatic technological change” creates legal uncertainty); United States v. Ganias, 755 F.3d 125, 134 (2d

Cir. 2014), rev’d en banc on other grounds, 824 F.3d 199 (2d Cir. 2016) (“Because the degree of privacy secured

to citizens by the Fourth Amendment has been impacted by the advance of technology, the challenge is to adapt

traditional Fourth Amendment concepts to the Government’s modern, more sophisticated investigative tools.”);

Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,

102 MICH. L. REV. 801, 808 (2004) [hereinafter Kerr, The Fourth Amendment and New Technologies]

(discussing impact of changing technologies on Fourth Amendment doctrine).

See United States v. Saboonchi, 990 F. Supp. 2d 536, 539 (D. Md. 2014) (answering in the affirmative).

See Carpenter v. United States, No. 16-402 (U.S. June 22, 2018) (answering in the affirmative).

See Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. PA. L. REV. 327,

376–88 (2015).

See Riley v. California, 134 S. Ct. 2473, 2477–78 (2014) (holding that the warrant exception for

searches incident to arrest does not permit a search of a cellphone’s contents).

See, e.g., Kyllo v. United States, 533 U.S. 27, 40–41 (2001) (considering whether use of thermal

imaging devices to scan a private home was a search requiring Fourth Amendment protection); Katz v. United

States, 389 U.S. 347, 351–53 (1967) (holding that placing an electronic listening device on a public telephone

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Searches and seizures of electronic media, such as computers and smart

phones, present judges with a particularly thorny example of this phenomenon.

For a traditional analog search or seizure to pass Fourth Amendment muster, the

government must (1) apply to a neutral magistrate for a search warrant, (2)

satisfy that magistrate that there is probable cause to believe that the search will

lead to evidence of a crime, and (3) identify with particularity the places to be

searched and the evidence to be seized.

The magistrate then memorializes that

information in a warrant, which authorizes law enforcement officials to execute

a search of those places and to seize that evidence. These rules are designed to

constrain government discretion, ensuring both that law enforcement officials

have sufficient justification for infringing on a citizen’s privacy and that the

infringement is no more significant than necessary.

When it comes to digital evidence, however, it is often impossible at the time

of seizure to locate and segregate data that is responsive to a warrant from the

vast amount of non-responsive (and often intensely personal) data stored on the

same device. Imagine, for example, that Harry is suspected of tax fraud, and law

enforcement gets a warrant to seize tax-related documents from his home

computer. While looking through Harry’s computer files for evidence of tax

fraud, investigators are likely to come across quite a few non-tax-related files,

which could be private items such as personal correspondence or detailed

medical information. Similarly, investigators seeking evidence that a computer

was used to view child pornography might discover (lawful) intimate

photographs or an Internet search history suggesting a substance-abuse problem.

In other words, the search might result in exactly the kind of intrusive search

that warrants are supposed to prevent.

Rule 41 of the Federal Rules of Criminal Procedure was amended in 2009 to

recognize the unique nature of digital searches and offers as a partial solution a

two-step process.

First, when it comes to digital searches, investigators may

booth qualified as a search because “the Fourth Amendment protects people, not places”); Olmstead v. United

States, 277 U.S. 438, 464–65 (1928) (requiring a physical intrusion into a constitutionally protected area to

trigger the Fourth Amendment), overruled by Katz, 389 U.S. 347, and Berger v. New York, 388 U.S. 41 (1967);

Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 HARV. L. REV. 476, 494–525

(2011) (providing examples of courts adjusting Fourth Amendment doctrine in response to technology to

maintain the balance of power between would-be criminals and law enforcement). Arguably, Katz added to the

Olmstead-era rules rather than replacing them. See United States v. Jones, 565 U.S. 400, 405–07 (2012) (holding

that Katz was not intended to withdraw any of the protection that the Fourth Amendment provides to private

property).

Dalia v. United States, 441 U.S. 238, 255 (1979).

See infra notes 59–61 and accompanying text.

See infra note 60 and accompanying text.

FED. R. CRIM. P. 41 advisory committee’s note to 2009 amendment.

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2018] THE MAGISTRATES’ REVOLT 53

engage in an overbroad seizure, such as seizing an entire computer, rather than

only those files that contain evidence described in the warrant.

Then,

investigators can subject the seized data to “a later review.”

While this rule

may ensure that law enforcement officers can perform a thorough seizure of

evidence responsive to the warrant, it does not entirely solve the problem.

Whenever the search ultimately takes place, investigators still must identify the

evidence—tax returns, for example—and separate it from other non-responsive

data, such as private letters. This raises the question of what limits, if any, should

govern investigators’ access to or use of the non-responsive information it

encounters—a question that Rule 41 declines to answer.

In an effort to fill this gap, a handful of magistrate judges took matters into

their own hands in what has been described in some quarters as a “magistrates’

revolt.”

The “revolt” consisted of a series of opinions issued by federal

magistrates around the country that sought to balance the interests of

investigators against suspects’ privacy rights by rejecting law enforcement’s

warrant requests for digital evidence unless those requests included (sometimes

detailed) ex ante restrictions on how the government would carry out the search,

such as limiting how long the government could keep the hardware it seized,

specifying how the government would conduct the search, or explaining what

the government would do with information it uncovered that fell outside the

scope of the warrant.

The number of magistrates involved was not large, but

the opinions had outsized effect, prompting a debate on the propriety of the

practice.

The magistrates’ approach has been championed by some commentators as

an effective means of addressing the Fourth Amendment challenge posed by

digital searches. Professor Paul Ohm argues, for example, that these types of

FED. R. CRIM. P. 41(e)(2)(B).

Id.

See infra note 42 and accompanying text.

See, e.g., Reid Day, Comment, Let the Magistrates Revolt: A Review of Search Warrant Applications

for Electronic Information Possessed by Online Services, 64 U. KAN. L. REV. 491, 510–11 (2015); Patrick J.

Cotter, Magistrates’ Revolt: Unexpected Resistance to Federal Government Efforts to Get “General Warrants”

for Electronic Information, NAT’L L. REV. (May 15, 2014), https://www.natlawreview.com/article/magistrates-

revolt-unexpected-resistance-to-federal-government-efforts-to-get-genera; Scott H. Greenfield, The

Magistrates’ Revolt Continues: Search Protocol, SIMPLE JUST.: A CRIM. DEF. BLOG (Feb. 25, 2015), http://blog.

simplejustice.us/2015/02/25/the-magistrates-revolt-continues-search-protocol/; Ann E. Marimow & Craig

Timberg, Low-Level Federal Judges Balking at Law Enforcement Requests for Electronic Evidence, WASH.

POST (Apr. 24, 2014), https://www.washingtonpost.com/local/crime/low-level-federal-judges-balking-at-law-

enforcement-requests-for-electronic-evidence/2014/04/24/eec81748-c01b-11e3-b195-

dd0c1174052c_story.html.

See infra Section II.B. and accompanying notes.

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restrictions “have become necessary; they are the only way the courts can fulfill

their constitutional duty to protect privacy from government overreaching.”

The highly influential former Ninth Circuit Judge Alex Kozinski also contended

that magistrates should include a series of ex ante instructions in the warrants

for digital searches that they issue.

Indeed, several magistrates’ orders

considered part of the revolt used Judge Kozinski’s suggested framework as a

blueprint.

Yet while it might seem like an elegant means to fill a gap in existing law,

the practice has not been universally endorsed. Fourth Amendment expert

Professor Orin Kerr has argued, for example, that memorializing ex ante rules

for searches of electronic media is neither lawful nor normatively advisable.

Kerr and other opponents of the practice argue that it will result in excessive

limitations on law enforcement officials, that necessary means of executing a

digital search is unknowable ex ante, and that magistrates lack the expertise (and

perhaps even the authority) to craft or oversee these types of restrictions.

Paul Ohm, Massive Hard Drives, General Warrants, and the Power of Magistrate Judges, 97 VA. L.

REV. ONLINE 1, 11–12 (2011) (arguing that Professor Kerr is incorrect when he asserts that magistrates lack the

authority to impose ex ante rules and stating, without elaboration, that magistrates should engage in this

practice); see also Lily R. Robinton, Courting Chaos: Conflicting Guidance from Courts Highlights the Need

for Clearer Rules to Govern the Search and Seizure of Digital Evidence, 12 YALE J.L. & TECH. 311, 343–44

(2010) (arguing that it would be unreasonable not to require investigators to employ “less intrusive, more

effective search methods” where they exist); Derek Haynes, Comment, Search Protocols: Establishing the

Protections Mandated by the Fourth Amendment Against Unreasonable Searches and Seizures in the World of

Electronic Evidence, 40 MCGEORGE L. REV. 757, 771–74 (2009) (arguing that search protocols are not meant

to impose unreasonable conditions on searches, but simply to determine how to exclude “irrelevant information

from the scope of the search”); Marc Palumbo, Note, How Safe Is Your Data?: Conceptualizing Hard Drives

Under the Fourth Amendment, 36 FORDHAM URB. L.J. 977, 999–1002 (2009) (arguing that technology exists

that permits the government to engage in effective digital searches without “indiscriminately viewing everything

on an individual’s computer”).

See infra note 76.

E.g., In re the Search of Info. Associated with [redacted]@mac.com that is Stored at Premises

Controlled by Apple, Inc., 25 F. Supp. 3d 1, 8 (D.D.C. 2014).

See, e.g., Orin S. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 VA. L. REV. 1241,

1246 (2010) [hereinafter Kerr, Ex Ante Regulation] (arguing that ex ante restrictions are both unauthorized and

unwise).

See id.; see also Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 545–

47, 575–76 (2005) [hereinafter Kerr, Searches and Seizures in a Digital World] (arguing that “it is more difficult

to plan a computer search ex ante” because “the search procedures” are “more of an art than a science”) (italics

added); Andrew Vahid Moshirnia, Note, Separating Hard Fact from Hard Drive: A Solution for Plain View

Doctrine in the Digital Domain, 23 HARV. J.L. & TECH. 609, 624–25 (2010) (arguing that limiting government

search techniques “invites gaming” by bad actors); Bryan K. Weir, Note, It’s (Not So) Plain to See: The Circuit

Split on the Plain View Doctrine in Digital Searches, 21 GEO. MASON U. CIV. RTS. L.J. 83, 108–10 (2010)

(arguing it is impossible to know in advance what methods will be necessary because the investigator, like the

doctor “may not know how best to proceed until he opens up the patient and takes a look”).

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2018] THE MAGISTRATES’ REVOLT 55

This Article contends that the true significance of this revolt has eluded both

supporters and opponents. Neither appreciate that the magistrates’ “revolt” was

no revolt at all. Instead, these judges—whether consciously or unconsciously—

have simply adapted to the digital search context a decades-old tool designed to

resolve exactly the sort of privacy concerns that digital searches raise:

“minimization.”

Minimization procedures, whose specifics will vary from

context to context, are procedural protections that judges may impose on

searches and seizures when the investigative technique being authorized poses a

significant privacy threat.

This Article contends that a brief look at the history

of minimization procedures reveals that what some magistrates have been

doing—the so-called revolt—is exactly the same thing that Congress has

statutorily required in other contexts for decades.

It further argues that these

judges should not only embrace the practice of imposing ex ante limits on digital

searches but also recognize those limits for what they are—minimization

procedures.

The most instructive, creative, and flexible use of minimization

procedures—and thus the most useful model for magistrates—has come from

the Foreign Intelligence Surveillance Court (FISA Court). The FISA Court is a

federal court created by the Foreign Intelligence Surveillance Act of 1978

(FISA) to review government applications to engage in domestic surveillance

for foreign intelligence purposes.

For the first three decades of its existence,

the Court operated much like a magistrate judge evaluating requests for search

warrants—determining (in secret and ex parte) whether government applications

See 50 U.S.C. § 1801(h) (2012) (defining minimization procedures as procedures “reasonably designed

in light of the purpose and technique” of the information collection “to minimize the acquisition and retention,

and prohibit the dissemination,” of private information). Minimization is statutorily required in multiple

contexts. See also 18 U.S.C. § 2518(5) (2012) (criminal wiretaps); 50 U.S.C. § 1801(h) (electronic

communications for foreign intelligence purposes); 50 U.S.C. § 1821(4) (2012) (physical searches for foreign

intelligence purposes); The USA Freedom Act of 2015, Pub. L. No. 114-23, § 104(a)(3)(A), 129 Stat. 268, 272

(2015) (codified at 50 U.S.C. § 1861(g)(1) (2015)) (communications metadata).

Anyone who watched the HBO series The Wire is already familiar with basic minimization procedures.

When monitoring the communications of the Barksdale drug organization, members of the Major Crimes Unit

listened to and recorded all conversations related to the illicit drug trade. But upon hearing a conversation with

a clearly non-criminal purpose—someone making plans to attend church services with family members, for

example—the police stopped recording. That is minimization. Since a wiretap warrant only authorizes law

enforcement to collect communications that constitute evidence of a crime, refraining from recording non-crime-

related communications minimizes (or prevents) collection of material beyond the scope of the warrant. See The

Wire: The Wire, Season 1, Episode 6 (HBO television broadcast July 7, 2002). For a discussion of other forms

of minimization, see Section II.B.

See infra Section II.B.2. (discussing examples of the FISA Court’s minimization procedures).

50 U.S.C. § 1803(a) (2012) (establishing an Article III court to review and approve government

applications for authorization to conduct electronic surveillance for foreign intelligence purposes inside the

United States).

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for surveillance authority should be approved.

Since 9/11, however, the

intelligence community’s ever-expanding surveillance powers have driven a

correspondingly expanded role for the FISA Court. As the scope of government

authority grew, so too did the means by which the FISA Court sought to

constrain that authority within constitutional and statutory limits.

The result

was the development of a collection of minimization procedures now available

for magistrates to tap.

Magistrates’ characterization of ex ante warrant limitations as “minimization

procedures” would be more than a simple semantic shift. As an initial matter, it

would help to refute the contention that engaging in the practice is beyond the

scope of magistrate judges’ competence. Individual judges have always played

a critical role in devising and overseeing the implementation of minimization

procedures.

Recognizing that these magistrates are merely continuing to

perform this function will therefore recast their actions as a new instantiation of

a recognized, legitimate judicial role, rather than a new, potentially illegitimate

practice. In addition, once magistrates envision ex ante rules for digital searches

as minimization procedures, they can draw on the FISA Court’s creative

minimization jurisprudence. The FISA Court’s opinions and orders include a

rich variety of forms that minimization can take.

In addition, they demonstrate

that minimization procedures can serve as effective, flexible tools with which to

safeguard constitutional rights that are threatened by advances in the

government’s technological capabilities.

In short, they form part of the

solution to the digital-search puzzle, and should be recognized as such.

This Article will proceed as follows: Part I will set out in more detail the

particular Fourth Amendment difficulty arising from searches of electronically

stored information. Part II will first explain minimization procedures’ raison

d’être: to safeguard individual rights when an information-collection technique

risks mingling responsive and non-responsive information. It will then describe

some of the innovative ways in which the FISA Court has used minimization

procedures in pursuit of this goal. Finally, Part III will begin by offering insights

See infra Section II.B.2.

Id.

See infra notes 106–109 and accompanying text. Usually, these judges are enforcing statutory

requirements to minimize, but the FISA Court has also imposed minimization procedures in contexts where

there was no such mandate. See infra notes 158–163 and accompanying text.

See infra Section II.B.2.

See generally Emily Berman, Quasi-Constitutional Protections and Government Surveillance, 2016

BYU L. REV. 771 (discussing in detail the array of minimization procedures employed by the FISA Court);

Emily Berman, When Database Queries Are Fourth Amendment Searches, 102 MINN. L. REV. 577 (2017)

(same).

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2018] THE MAGISTRATES’ REVOLT 57

into what the idea of minimization has to offer traditional courts facing the

challenges inherent in authorizing electronic searches and then will go on to

rebut existing critiques of the practice on both normative and doctrinal grounds.

I. D

IGITAL SEARCHES AND THE FOURTH AMENDMENT

This Part will limn the contours of the Fourth Amendment dilemma that

searches of digital storage presents. It will begin in section A by detailing the

ways in which digital searches challenge existing Fourth Amendment doctrine.

Section B will then explain how a few magistrate judges sought to address this

challenge.

A. Digital Searches and the Fourth Amendment

This dilemma arises because the nature of digital evidence requires

investigators to seize entire storage devices and search them for evidence later—

a practice that poses significant threats to privacy—rather than seizing only

evidence of criminality from the outset. Two differences between digital and

analog evidence necessitate this “seize first, search later” approach. First,

evidence of criminal activity will inevitably be mingled with irrelevant data. And

due to the sheer size of digital devices’ storage capacity, the volume of irrelevant

data on any given device will be significant.

This means that any digital storage

medium seized because it contains evidence of criminality will also include vast

amounts of innocent, potentially intimate data, raising serious privacy concerns.

A search of a cell phone’s text messages might reveal not only communications

between co-conspirators but also private text messages unrelated to the crime.

The same is true of other forms of data as well, such as Internet search histories

that reveal queries about health symptoms, addiction treatment, or family

planning options.

Indeed, according to the Supreme Court, “a cell phone search

would typically expose to the government far more than the most exhaustive

search of a house.”

And if the digital evidence at issue is a hard drive that stores

information about multiple individuals—an accountant’s records, a Gmail

server, or a drug testing lab’s files—then the privacy of “countless individuals

See Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on

Nonresponsive Data, 48 TEX. TECH L. REV. 1, 3 (2015) [Kerr, Executing Warrants for Digital Evidence] (“[A]

law enforcement search for digital evidence requires searching for a needle in an enormous electronic

haystack.”).

Riley v. California, 134 S. Ct. 2473, 2490 (2014).

Id. at 2491 (italics omitted).

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not implicated in any criminal activity, who might not even know that the

information about them has been seized” is also at risk.

Second, digital evidence differs from other forms of evidence because its

nature as contraband is not always immediately evident. This complicates efforts

to segregate digital evidence from non-responsive information. Data on digital

storage devices “may be concealed, compressed, erased or booby-trapped” in

ways that make it impossible to discover without accessing large numbers of

non-responsive files.

And while criminals might seek to hide physical evidence

as well—for example by stashing illicit drugs in containers with innocuous

labels, such as “Sally’s Legos”—there are only so many places such evidence

can be hidden. Law enforcement may not, as the saying goes, look inside a

matchbox if they are authorized to seize an elephant.

When it comes to digital

evidence, contraband is more difficult to identify using only a cursory search.

These differences mean that it is not feasible to require law enforcement to

sift through all of that information for responsive data at the time of the initial

search and seize only responsive information at the point of collection

—as

Rule 41 acknowledges, “over-seizing is an inherent part” of digital evidence

collection.

Moreover, large volumes of information on each digital device

means that the over-collection will be significant, raising significant privacy

concerns.

Yet to ensure effective searches, the government must be authorized

to engage in this over-seizure at the outset and then examine the seized devices’

contents later, usually at a law enforcement facility and often through advanced

forensic methods performed by a computer specialist.

United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1177 (9th Cir. 2010).

See, e.g., id. at 1170–71; United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006) (“Forcing police to

limit their searches to files that the suspect has labeled in a particular way would be much like saying police may

not seize a plastic bag containing a powdery white substance if it is labeled ‘flour’ . . . .”).

See Wilkerson v. State, 594 A.2d 597, 605 n.3 (Md. Ct. Spec. App. 1991) (“The permitted scope of a

search is, logically, whatever is necessary to serve the purpose of that particular search, but ‘[d]on’t look for an

elephant in a matchbox.’”).

Hill, 459 F.3d at 974–75 (endorsing the district court’s reasoning that “the process of searching the

files at the scene can take a long time. To be certain that the medium in question does not contain any seizable

material, the officers would have to examine every one of what may be thousands of files on a disk—a process

that could take many hours and perhaps days.”).

Comprehensive Drug Testing, Inc., 621 F.3d at 1177; see also id. at 1180 (Kozinski, J., concurring)

(“Nothing any appellate court could say, however, would substitute for the sound judgment that magistrate

judges must . . . exercise in striking this delicate balance.”).

See, e.g., United States v. Schesso, 730 F.3d 1040, 1042 (9th Cir. 2013) (“Because electronic devices

could contain vast quantities of intermingled information, raising the risks inherent in over-seizing data, law

enforcement and judicial officers must be especially cognizant of privacy risks when drafting and executing

search warrants for electronic evidence.” (citation omitted)).

See FED. R. CRIM. P. 41; Kerr, Ex Ante Regulation, supra note 21, at 1248.

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While this two-step process resolves the problem regarding inability to

segregate responsive information at the time of collection, it simply kicks the

Fourth Amendment can down the road. Having seized an entire digital storage

device, investigators will still need to decide how to segregate the needles of

evidence buried in a haystack of information that is not responsive to the

warrant—a question Rule 41 does not address. In fact, the Advisory Committee

on the Rules of Criminal Procedure specifically noted that the amended Rule 41

“does not address the specificity of description that the Fourth Amendment may

require in a warrant for electronically stored information, leaving the application

of this and other constitutional standards concerning both the seizure and the

search to ongoing case law development.”

As one magistrate judge put it,

digital searches are one area where “an observable gap has arisen between the

well-established rules lower courts have and the ones they need.”

The “plain view doctrine,” which allows law enforcement to seize any

evidence in plain view of any place they are lawfully permitted to be,

ensures

that the privacy consequences of permitting a digital search without limitations

are problematic. According to this doctrine, if the police have a warrant to search

a home for firearms used in a robbery and see drugs sitting on a table upon

entering the house, for example, those drugs may be seized as well. Imagine that

officers seeking evidence of tax fraud come across email messages indicating

that the suspect has enlisted a hitman to kill someone. Absent explicit

restrictions, the suspect may now be charged not only with tax fraud, but also

with attempted murder and solicitation. And while that example may not garner

much sympathy for the suspect, who was, after all, soliciting murder, it

represents a government intrusion into a private realm for which there was no

probable cause and no warrant.

Moreover, the government’s discovery of wholly legal conduct in the course

of its search for contraband also can lead to real harm. Imagine that a high school

principal is suspected of tax evasion and law enforcement obtains a warrant

authorizing a search of his computer. On the computer, investigators discover

emails that indicate the principal is having an extramarital affair, or that he has

FED. R. CRIM. P. 41 advisory committee’s note to 2009 amendment.

In re the Search of Cellular Tels. Within Evidence Facility Drug Enf’t Admin., Kan. City Dist. Office,

No. 14-MJ-8017-DJW, 2014 WL 7793690, at *4 (D. Kan. Dec. 30, 2014) [hereinafter Cellular Tels.].

See Coolidge v. New Hampshire, 403 U.S. 443, 464–66 (1971) (establishing the plain view doctrine);

In re Appeal of Application for Search Warrant, 71 A.3d 1158, 1173 (Vt. 2012) (“[W]hen law enforcement is

conducting a search pursuant to a warrant, police are authorized to seize objects not listed in the warrant as long

as the object is viewed from a lawful vantage point, the incriminating nature of the object is obvious, and it may

be seized from a lawful right of access.” (citing Horton v. California, 496 U.S. 128, 136–37 (1990))).

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60 EMORY LAW JOURNAL [Vol. 68:49

an enormous pornography collection. Though neither adultery nor possession of

pornography is a crime, if such discoveries leak to the press or to his

supervisors—or get posted on Twitter—there will likely be significant career-

related ramifications for the principal. Finally, there is the simple fact that none

of us wants government officials rummaging through our private photos,

documents, and communications. Even if there is nothing illegal or

embarrassing among them, the Fourth Amendment denies the state unfettered

access to our “persons, houses, papers, and effects” to protect our privacy.

should not be forced to relinquish that protection when it comes to digital

material.

Federal courts of appeals have responded to the digital implications of the

plain view doctrine in different ways. Some courts simply continue to apply the

traditional plain view doctrine to digital searches, holding that investigators are

free to collect and use any digital contraband they happen to come across while

executing a valid warrant.

Others make a case-by-case assessment of whether

a particular warrant authorized investigators to access particular files.

And in

a concurrence, Ninth Circuit Judge Alex Kozinski advocated a more aggressive

role for magistrate judges, encouraging them to “insist that the government

forswear reliance on the plain view doctrine” to prevent turning “all warrants for

digital data into” the reviled “general warrants,” whose use by the British served

as impetus for including the Fourth Amendment in the Bill of Rights.

U.S. CONST. amend. IV.

See, e.g., United States v. Stabile, 633 F.3d 219, 241–42 (3d Cir. 2011) (holding that the plain view

doctrine applies to a computer search in which investigators accessed files not covered by the warrant after

seeing incriminating file names); United States v. Williams, 592 F.3d 511, 522–23 (4th Cir. 2010) (determining

that a warrant authorizing a digital search authorizes examination of every file on the target computer); United

States v. Burgess, 576 F.3d 1078, 1092–94 (10th Cir. 2009) (same).

See, e.g., United States v. Mann, 592 F.3d 779, 785 (7th Cir. 2010) (opining that the scope of the plain

view doctrine in digital searches should be allowed to develop incrementally on a case-by-case basis); United

States v. Carey, 172 F.3d 1268, 1272–73 (10th Cir. 1999) (closed computer files were not in plain view even

though their file names were visible). Professor Kerr also prefers to allow the law of digital searches to develop

through ex post case-by-case review, though his views on the role of the plain view doctrine have evolved over

time. He first argued that the plain view doctrine should not apply to computer searches at all, and then

subsequently disavowed that approach to argue instead that courts should interpret the Fourth Amendment to

impose a use restriction on non-responsive electronic data. Compare Kerr, Searches and Seizures in a Digital

World, supra note 22, at 566–82 (arguing that the plain view doctrine simply should not apply to computer

searches), with Kerr, Executing Warrants for Digital Evidence, supra note 32, at 17 (arguing that courts should

interpret the Fourth Amendment to impose a use restriction on non-responsive data).

United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178 (9th Cir. 2010 (Kozinski, J.,

concurring); see also Riley v. California, 134 S. Ct. 2473, 2494 (2014); Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011) (“The Fourth Amendment was a response to the English Crown’s use of general warrants, which often

allowed royal officials to search and seize whatever and whomever they pleased . . . .”); Payton v. New York,

445 U.S. 573, 583 (1980) (describing British use of general warrants to authorize searches and seizures as “the

immediate evils that prompted the framing and adoption of the Fourth Amendment”).

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B. The Magistrates’ Revolt

The magistrates’ “revolt” was motivated by several magistrates’ perception

that courts’ responses to the privacy threat posed by digital searches was

inadequate. The revolt was to prevent government officials from accessing large

amounts of non-responsive data in the second step of Rule 41’s two-step

procedure that prompted some magistrate judges to take matters into their own

hands.

Some began to include constraints on how the government could

execute digital searches in the warrants that they issued. These limits took a

variety of forms. First are limits on the seizure of the hardware itself, with some

judges insisting that the government justify why it needed, for example, to seize

multiple computers in a home rather than only the suspect’s office computer.

The magistrate would then authorize the seizure of only those devices whose

collection the government could justify. A second set of limits applied to the

actual search of the hardware once it had been seized. These include time limits,

giving investigators a deadline by which the search must be completed;

requiring the government to return or destroy records that fell outside the scope

of the warrant;

and—perhaps most controversially—including within the

warrant details of how the data might be searched, such as what type of search

The revolt began in response to requests for warrants for the contents of email accounts, but the

rationale was extended to warrants of electronic devices and web-based services as well. In re the Search of

Premises Known as: Three Hotmail Email Accounts: [redacted]@hotmail.com, [redacted]@hotmail.com,

[redacted]@hotmail.com Belonging to and Seized from [redacted], No. 16-MJ-8036-DJW, 2016 WL 1239916,

at *5 (D. Kan. Mar. 28, 2016) [hereinafter Three Hotmail Email Accounts].

See, e.g., United States v. Hill, 459 F.3d 966, 975 (9th Cir. 2006) (holding that officials must get pre-

approval from a magistrate to seize computers and search them at a later date).

See, e.g., United States v. Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010) (describing a warrant

issued by a magistrate judge that provided a sixty-day window to search a seized computer); United States v.

Brunette, 76 F. Supp. 2d 30, 42 (D. Me. 1999) (search of computer must be finished within thirty days of the

seizure).

See In re the Search of Info. Associated with the Facebook Account Identified by the Username

Aaron.Alexis that is Stored at Premises Controlled by Facebook, Inc., 21 F. Supp. 3d 1, 9–10 (D.D.C. 2013)

(requiring the return or destruction of data to “prevent the government from collecting and keeping indefinitely

information to which it has no right”); see also, e.g., In re the Search of Black iPhone 4, 27 F. Supp. 3d 74, 80

(D.D.C. 2014) (insisting the “government must specify what will occur” with “data that is seized by the

government and is outside the scope of the warrant”); In re the Search of Info. Associated with

[redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F. Supp. 3d 145, 155–56 (D.D.C.)

[hereinafter In re the Search of Info. Associated with [redacted]@mac.com], vacated by 13 F. Supp. 3d 157,

160–64 (D.D.C. 2014) [hereinafter Stored at Premises].

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protocols,

investigators may use.

Examples might include specific key word

searches, file types (e.g., text files, picture files, video files), metadata, or the

protocol might include more sophisticated, computer science-based

methodologies.

Even when search protocols were not included in the warrant

itself, some judges required the government to return to the magistrate for

permission to move forward once it determined what type of search it needed to

perform.

Whichever method was employed, the magistrate specified the limits

in the warrant itself, thereby placing ex ante limits on how investigators carried

out their search.

The magistrates were not accused of “revolting,”

however, until a handful

of them began actually denying warrant applications in which the government

failed to propose sufficient (in the magistrates’ view) ex ante limits on the

search.

Their overarching concern, laid out in a series of thoughtful opinions,

See Three Hotmail Email Accounts, 2016 WL 1239916, at *2 (defining a search protocol as “a

document submitted by the government explaining to the Court how it will conduct its search of an individual’s

[electronically stored information]”); In re the Search of Apple iPhone, IMEI 013888003738427, 31 F. Supp.

3d 159, 166 (D.D.C. 2014) [hereinafter Apple iPhone] (defining a search protocol as “an explanation of the

scientific methodology the government will use to separate what is permitted to be seized from what is not”); id.

(treating different types of searches as accessing different “regions” of an electronic device, necessitating search

protocols to satisfy the Fourth Amendment’s particularity requirement) .

See, e.g., In re the Search of: 3817 W. West End, First Floor, Chi., Ill., 60621, 321 F. Supp. 2d 953,

963 (N.D. Ill. 2004) (insisting that the government submit search protocols prior to executing the search). But

see In re a Warrant for All Content and Other Info. Associated with the Email Account [email protected]om

Maintained at Premises Controlled by Google, Inc., 33 F. Supp. 3d 386, 399 (S.D.N.Y. 2014) [hereinafter Gmail

Account] (declining to impose search protocols but acknowledging magistrates’ power to do so).

See, e.g., Three Hotmail Email Accounts, 2016 WL 1239916, at *19–24 (suggesting categorical or

keyword limits, specifying a search protocol, using special masters or filter teams to segregate non-responsive

evidence, and imposing rules for returning or destroying non-responsive data); In re the Search of Info.

Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 25 F. Supp. 3d 1, 7

(D.D.C. 2014).

See, e.g., In re the Search of the Premises Known as 1406 N. 2nd Ave., Iron River, Mich. 49935, No.

2:05-MJ-28, 2006 WL 709036, at *1 (W.D. Mich. Mar. 17, 2006) (requiring government to return to the

magistrate for express permission to search computers after they had been seized).

The term “magistrates’ revolt” was first coined in the media and later embraced by at least one of the

magistrate judges who participated. See supra note 16.

In re the Search of Info. Associated with [redacted]@mac.com, 25 F. Supp. 3d at 8; In re Applications

for Search Warrants for Info. Associated with Target Email Address, Nos. 12-MJ-8119-DJW, 12-MJ-8191-

DJW, 2012 WL 4383917, at *6 (D. Kan. Sept. 21, 2012) [hereinafter Email Search Warrants I]. Before actually

denying any warrants, at least one magistrate repeatedly asked the government to submit more limited warrant

applications and modified several of those applications. See Apple iPhone, 31 F. Supp. 3d at 169; In re

[redacted]@gmail.com, 62 F. Supp. 3d 1100, 1101, 1104–5 (N.D. Cal. 2014); In re the Search of Info. Associated

with [redacted]@mac.com, 25 F. Supp. 3d at 9 (“By the Court’s count, it modified approximately twenty search

and seizure warrants for electronic information in September and December 2013. It will no longer do so.

Instead, any warrants that do not comport with the requirement of the Fourth Amendment will—like the present

Application—be denied . . . .”). But see Gmail Account, 33 F. Supp. 3d at 401 (rejecting requirement that

warrants for electronic searches require detailed ex ante limitations).

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2018] THE MAGISTRATES’ REVOLT 63

was the Fourth Amendment’s requirement that “searches deemed necessary

should be as limited as possible.”

The requirements that warrants be based on

probable cause and identify the places to be searched and the things to be seized

with particularity, they pointed out, are meant to eliminate “the specific evil” of

the “‘general warrant’ abhorred by the colonists”

and to limit investigators’

discretion.

In addition, they advocated “greater vigilance” when it came to

searches of electronically stored information because digital devices and their

“ability to store and intermingle a huge array of one’s personal papers in a single

place” leads to increased “risk that, given an unrestricted warrant, the

government will be able to access a plethora of information which it has no

constitutional foundation to view.”

The job of a magistrate, as they saw it, was

Email Search Warrants I, 2012 WL 4383917, at *5 (quoting Coolidge v. New Hampshire, 403 U.S.

443, 467 (1971)); see also, e.g., Maryland v. Garrison, 480 U.S. 79, 84 (1987) (holding that the particularity

“requirement ensures that the search will be carefully tailored to its justifications, and will not take on the

character of the wide-ranging exploratory searches the Framers intended to prohibit”); Coolidge, 403 U.S. at

467 (judicial oversight of search warrants is meant “to eliminate altogether searches not based on probable

cause”).

Email Search Warrants I, 2012 WL 4383917, at *5 (quoting Coolidge, 403 U.S. at 467); see Riley v.

California, 134 S. Ct. 2473, 2494 (2014) (pointing out that “the Fourth Amendment was the founding

generation’s response to the reviled ‘general warrants’ . . . of the colonial era,” which permitted indiscriminate

searches); Payton v. New York, 445 U.S. 573, 583 (1980) (“It is familiar history that indiscriminate searches

and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the

framing and adoption of the Fourth Amendment.”).

Three Hotmail Email Accounts, No. 16-MJ-8036-DJW, 2016 WL 1239916, at *4 (D. Kan. Mar. 28,

2016); see also, e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 621–22 (1989) (“An essential purpose

of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that

such intrusions are not the random or arbitrary acts of government agents.”); Delaware v. Prouse, 440 U.S. 648,

653–54 (1979) (“The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of

‘reasonableness’ upon the exercise of discretion by government officials . . . ‘to safeguard the privacy and

security of individuals against arbitrary invasions.’” (citation omitted)); Email Search Warrants I, 2012 WL

4383917, at *6 (“[N]othing is to be left to the discretion of the officer executing the warrant.” (quoting Marron

v. United States, 275 U.S. 192, 196 (1927))); Barry Friedman & Cynthia Benin Stein, Redefining What’s

“Reasonable”: The Protections for Policing, 84 GEO. WASH. L. REV. 281, 316–17 (2016) (“It has long been a

common consensus that the Fourth Amendment guards against the evil of arbitrary government rummaging in

people’s lives.”); M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief that Gave It

Birth, 85 N.Y.U. L. REV. 905, 921 (2010) (“[T]he mischief that gave birth to the Fourth Amendment was the

oppressive general search . . . . The lesson from this mischief is that granting unlimited discretion to [government

officials] inevitably leads to incursions on privacy and liberty . . . .”).

Email Search Warrants I, 2012 WL 4383917, at *7 (quoting United States v. Otero, 563 F.3d 1127,

1132 (10th Cir. 2009) (citation omitted)); Cellular Tels., No. 14-MJ-8017-DJW, 2014 WL 7793690, at *5 (D.

Kan. Dec. 30, 2014); see also In re the Search of Info. Associated with [redacted]@mac.com, 25 F. Supp. 3d at

6 (“Any search of an electronic source has the potential to unearth tens or hundreds of thousands of individual

documents, pictures, movies, or other constitutionally protected content.” (citing United States v. Leary, 846

F.2d 592, 600 (10th Cir. 1988))).

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64 EMORY LAW JOURNAL [Vol. 68:49

to ensure that “the search will be carefully tailored to its justifications”

rather

than becoming “a general, exploratory rummaging in a person’s belongings.”

The magistrates thus began rejecting government applications for warrants

when those warrants “fail[ed] to set out any limits on the government’s review”

of the data, “on the universe of information to be disclosed to and searched by

the government,” or on “the government’s review of the content”

as well as

when they viewed the limits the government did propose as inadequate.

The

most frequent ground for denying applications was a lack of sufficiently detailed

search protocols.

Because while the ability to copy and store “thousands or

millions of documents with relative ease” means that “the potential for abuse

has never been greater,”

search tools provide “the potential for narrowing

searches so that they are more likely to find only the material within the scope

of the warrant.”

Thus, judges saw search protocols as the best available means

of circumscribing digital searches and expected the government to take

advantage of them. Opinions denying warrant applications often included

affirmative suggestions for methods that the government could employ to

address these concerns

as well as evidence of “exasperation” with the

government for not affirmatively suggesting limits itself.

And while “not every

Email Search Warrants I, 2012 WL 4383917, at *6.

Id. at *5 (citing Coolidge, 403 U.S. at 467).

In re Search Warrants for Info. Associated with Target Email Address, Nos. 12-MJ-8119-DJW, 12-

MJ-8191-DJW, 2012 WL 4383917, at *25 (D. Kan. Aug. 27, 2013); id. at *28, *30.

In re the Search of ODYS LOOX Plus Tablet, Serial No. 4707213703415, in Custody of U.S. Postal

Inspection Serv., 1400 N.Y. Ave. NW, Wash., D.C., 28 F. Supp. 3d 40, 46 (D.D.C. 2014) (requiring the

government to submit a search protocol “with sufficient information such that it will not be authorizing the

general, exploratory rummaging in a person’s belongings that the Fourth Amendment prohibits”) (citation

omitted); Apple iPhone, 31 F. Supp. 3d 159, 161 (D.D.C. 2014) (denying application because “the government

fails to articulate how it will limit the possibility that data outside the scope of the warrant will be searched”); In

re the Search of Premises Known as Nextel Cellular Tel. with Search Warrant [redacted] (Unknown Assigned

Tel. No.) Belonging to and Seized from [redacted], No. 14-MJ-8005-DJW, 2014 WL 2898262, at *14 (D. Kan.

June 26, 2014) [hereinafter Nextel Cellular] (“[T]he government must provide the court with a search

methodology substantially more detailed than the one provided here.”).

See, e.g., In re the Search of: 3817 W. W. End, First Floor, Chi., Ill., 60621, 321 F. Supp. 2d 953, 963

(N.D. Ill. 2004) (requiring government to submit to magistrate judge for review a proposed search protocol

before issuing a warrant to search the contents of a computer).

Apple iPhone, 31 F. Supp. 3d at 167.

Id.

In re the Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled

by Apple, Inc., 25 F. Supp. 3d 1, 7–8 (D.D.C. 2014); Cellular Tels., No. 14-MJ-8017-DJW, 2014 WL 7793690,

at *19–23 (D. Kan. Dec. 30, 2014) (discussing various possibilities in some detail); Email Search Warrants I,

Nos. 12-MJ-8119-DJW, 12-MJ-8191-DJW, 2012 WL 4383917, at *10 (D. Kan. Sept. 21, 2012).

In re the Search of Info. Associated with [redacted]@mac.com, 13 F. Supp. 3d 145, 154 (D.D.C. 2014)

(noting “exasperation that the government has, despite repeated warnings,” failed to offer alternatives to its

overbroad warrant applications); Three Hotmail Email Accounts, No. 16-MJ-8036-DJW, 2016 WL 1239916, at

*24 (D. Kan. Mar. 28, 2016).

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2018] THE MAGISTRATES’ REVOLT 65

search is created equal and not every warrant must include search protocols to

comply with the Fourth Amendment,” the inclusion of a search protocol helps

the court determine if the “search and seizure requested will be governed by

sufficient boundaries.”

Despite their good-faith effort to solve an acknowledged tension in Fourth

Amendment doctrine, magistrate judges’ so-called revolt has not been

universally embraced. Indeed, their demands for detailed search protocols were

often overruled,

and no court has held that such protocols are required.

the same time, some courts have expressed support for the idea of including ex

ante search limits in warrants.

Judge Kozinski, meanwhile, was the lone voice

going beyond endorsement to enumerate a set of proposed rules for judges to

include in warrants to search electronic data.

Commentators, like courts, have

split on the issue.

Cellular Tels., 2014 WL 7793690, at *7.

See, e.g., Stored at Premises, 13 F. Supp. 3d 157, 159–60 (D.D.C. 2014) (vacating a magistrate judge’s

opinion requiring the government to submit to ex ante limits).

E.g., United States v. Russian, 848 F.3d 1239, 1245 (10th Cir. 2017) (requiring only that warrants for

computer searches include some limiting principle (quoting United States v. Christie, 717 F.3d 1156, 1165 (10th

Cir. 2013)); United States v. Galpin, 720 F.3d 436, 451 (2d Cir. 2013) (“[W]e do not impose any rigid

requirements [that warrants include specific search protocols] at this juncture.”); Stored at Premises, 13 F. Supp.

3d at 157; see also Kerr, Ex Ante Regulation, supra note 21, at 1277–81.

E.g., United States v. Cartier, 543 F.3d 442, 447–48 (8th Cir. 2008) (“[T]here may be times that a

search methodology or strategy may be useful or necessary.”); United States v. Hill, 459 F.3d 966, 978 (9th Cir.

2006) (noting that the absence of search protocols is not “fatal” to a warrant, but that the court “look[s] favorably

upon” their inclusion); United States v. Garcia-Alvarez, No. 14-cr-0621 JM, 2015 WL 777411, at *5 (S.D. Cal.

Feb. 24, 2015) (observing that “it may have been better if the warrant had included a search protocol that

minimized unnecessary intrusion”); In re Appeal of Application for Search Warrant, 71 A.3d 1158, 1170 (Vt.

2012) (holding that ex ante limits on warrant executions are not required, but are “sometimes acceptable

mechanisms for ensuring the particularity of a search”).

United States. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178–80 (9th Cir. 2010)

(Kozinski, J., concurring) (stating that judges issuing such warrants should “insist that the government forswear

reliance on the plain view doctrine,” so that just because investigators come across data on a computer while

executing a valid warrant, that data cannot itself be seized; “the magistrate judge should order that the seizable

and non-seizable data be separated by an independent third party under the supervision of the court,” such as a

computer specialist; the methods the government uses to search for responsive information “must be designed

to uncover only the information for which it has probable cause, and only that information may be examined by

the case agents,” and to the extent there remains a risk that agents involved in the investigation might examine

or retain “any data other than that for which probable cause is shown,” the warrant should include “a protocol

for preventing” that from happening; absent judicial authorization to the contrary, the government must destroy

or return non-responsive data).

Compare, e.g., Kerr, Ex Ante Regulation, supra note 21, at 1246 (arguing that ex ante warrant

restrictions are “unauthorized and unwise”), with, e.g., Ohm, supra note 18, at 11–12 (arguing that ex ante

warrant restrictions are necessary to prevent government overreaching), and Kerr, Ex Ante Regulation, supra

note 21, at 1245 n.14 (listing articles that, contrary to his view, favor restrictions).

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66 EMORY LAW JOURNAL [Vol. 68:49

The contention of this Article is that what has been labeled a “magistrates’

revolt” was actually no such thing. Instead, magistrate judges simply turned to a

time-honored means of addressing privacy threats posed by broad collection

authority: minimization.

The history of minimization procedures—and

particularly the FISA Court’s implementation of them—reveals not only that

they provide an excellent means of constraining digital searches but also that

what some magistrates have been doing—and have been criticized or overruled

for—is simply borrowing the tool that Congress has statutorily demanded the

FISA Court use for decades. This Article therefore turns now to a discussion of

minimization itself.

II. M

INIMIZATION PROCEDURES: CONGRESS’S RESPONSE TO INEVITABLE

OVER-COLLECTION

While not a product of the digital age, the idea of minimization was

nonetheless invented to address the very same concern raised by digital searches:

how to prevent privacy intrusions when the government executes a warrant that

will inevitably collect information beyond the scope of the authorized seizure.

This Part first traces, in section A, minimization’s development from a judicially

required element of Congress’s criminal wiretapping statute to its prominent role

in the implementation of FISA.

Section B then documents how minimization

has been employed in practice.

As this discussion will demonstrate,

minimization procedures have played a relatively minor role in the regulation of

criminal investigations, but the FISA Court’s use of them has been both

innovative and effective.

At least two magistrate judges explicitly recognized that what they were doing was minimization. See

In re the Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple,

Inc., 25 F. Supp. 3d 1, 5 (D.D.C. 2014); Gmail Account, 33 F. Supp. 3d 386, 396 (S.D.N.Y. 2014) (describing

as “minimization procedures” privacy protections required in In re the Search of Info. Associated with the

Facebook Account Identified by the Username Aaron.Alexis that is Stored at Premises Controlled by Facebook,

Inc., 21 F. Supp. 3d 1, 9–10 (D.D.C. 2013)).

See William C. Banks, Programmatic Surveillance and FISA: Of Needles in Haystacks, 88 TEX. L.

REV. 1633, 1647 (2010) (explaining that in each context that it applies, the role of minimization is “to protect

against the acquisition[, retention, and dissemination] of private information unrelated to the purpose of the

criminal investigation”).

50 U.S.C. §§ 1801–1813 (2012).

For a more detailed discussion of the origin and evolution of minimization procedures, particularly in

the foreign intelligence context, see generally Berman, Quasi-Constitutional Protections, supra note 31, from

which much of the discussion in this part is drawn.

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2018] THE MAGISTRATES’ REVOLT 67

A. The Origins of Minimization Procedures

By the mid-twentieth century, a technological advancement in fighting

crime—wiretaps—had become “indispensable” to effective law enforcement,

particularly against organized crime.

The technique’s novelty, however, meant

that legal principles governing its use were initially unclear.

The Supreme

Court stepped in to lay down some rules of the road in two 1967 cases. First, in

Berger v. New York, the Court struck down New York State’s wiretapping law

as unconstitutional because it permitted collection that was too indiscriminate.

The problem, according to the Court, was that New York’s law permitted

wiretaps that could capture not only a suspect’s communications, but also “the

conversations of any and all persons coming into the area covered by the device

. . . without regard to their connection with the crime under investigation.”

Berger then “laid out guidelines for the Congress and State legislatures to follow

in enacting wiretapping and electronic eavesdropping statutes which would meet

constitutional requirements.”

Katz v. United States clarified that even wiretaps

of public phone booths were searches subject to these same Fourth Amendment

limitations.

Guided by the Berger and Katz opinions, Congress drafted what would

ultimately become Title III of the Omnibus Crime Control and Safe Streets Act

of 1968 (Title III), which governs the use of wiretaps in federal criminal

investigations.

Title III, “tailored to meet the constitutional requirements

imposed by” the Supreme Court,

contained a variety of procedural safeguards.

S. REP. NO. 90-1097, at 11 (1968) (Title III findings); see also THE PRESIDENT’S COMM’N ON LAW

ENF’T & THE ADMIN. OF JUST., THE CHALLENGE OF CRIME IN A FREE SOCIETY 201 (1967) (New York County’s

District Attorney “testified that electronic surveillance is[] ‘the single most valuable weapon in law

enforcement’s fight against organized crime’”).

THE PRESIDENT’S COMM’N ON L. ENF’T & THE ADMIN. OF JUST., THE CHALLENGE OF CRIME IN A FREE

SOCIETY 94 (“The state of the law in this field is so thoroughly confused that no policeman, except in States that

forbid both practices totally, can be sure about what he is allowed to do.”); see also id. at 202 (suggesting that

Congress enact legislation regulating wiretapping).

Berger v. New York, 388 U.S. 41, 44, 58–59 (1967).

Id. at 59.

S. REP. NO. 90-1097, at 68 (1968).

389 U.S. 347, 352 (1967).

Pub. L. No. 90–351, 82 Stat. 197 (codified as amended at 18 U.S.C. §§ 2510–2525 (2012)); S. REP.

NO. 90-1097, at 75 (“[T]he subcommittee has used the Berger and Katz decisions as a guide in drafting title

III.”); see also id. at 28 (“This proposed legislation conforms to the constitutional standards set out in Berger v.

New York . . . and Katz v. United States . . . .”).

S. REP. NO. 90-1097, at 224 (views of Sens. Dirksen, Hruska, Scott, Thurmond, and others); see also,

e.g., United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994) (recognizing that minimization is a necessary part

of ensuring the constitutionality of surveillance); In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002)

(noting that some circuit courts have held that minimization is a “constitutionally significant” element of Title

III).

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These of course included the traditional Fourth Amendment warrant

requirements: a neutral magistrate must determine that there is probable cause

to wiretap the target, and the type of evidence officials expect to collect must be

identified with particularity.

Congress also inferred from the Supreme Court’s

jurisprudence, however, the need for an additional procedural protection:

minimization.

Specifically, Title III requires that every wiretap order “shall

contain a provision that the authorization to intercept shall be . . . conducted in

such a way as to minimize the interception of communications not otherwise

subject to interception.”

In practice, this requires government investigators to take steps to screen out

conversations that are not pertinent to the investigation. The most

straightforward way to do so is to monitor the wiretap constantly and record only

those conversations whose collection is authorized.

So when the target of the

investigation is on the phone with his co-conspirators, that conversation should

be recorded, but when the same facility is used for unrelated conversations,

authorities should decline to collect those communications. There are other

methods as well, such as recording only during the hours of the day when the

target is likely to be discussing criminal activity, or recording all conversations

and then deleting those that turn out to be non-pertinent.

Ten years after Title III was enacted, when Congress again considered the

regulation of electronic surveillance—this time in the context of foreign

See Dalia v. United States, 441 U.S. 238, 255 (1979).

See Bynum v. United States, 423 U.S. 952, 952 (1975) (Brennan, J., dissenting from the denial of

certiorari) (citing S. REP. NO. 90-1097, at 68); see also id. (“Together [the provisions of Title III] are intended

to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise

and discriminate circumstances.”); Scott v. United States, 425 U.S. 917, 917 (1976) (Brennan, J., dissenting

from the denial of certiorari) (quoting Bynum, 423 U.S. at 952).

18 U.S.C. § 2518(5) (2012) (emphasis added). Berger requires “[l]imitations on the officer executing

the eavesdrop order which would (a) prevent his searching unauthorized areas, and (b) prevent further searching

once the property sought is found.” S. REP. NO. 90-1097, at 74; see also id. at 74–75 (noting Katz’s observation

that the surveillance at issue in that case would have been constitutionally valid had the government gotten a

judicial order, at least in part because “the agents confined their surveillance to the brief periods during which

petitioner used the telephone booth and took great care to overhear only the conversations of the petitioner

himself”).

See CLIFFORD S. FISHMAN & ANNE T. MCKENNA, WIRETAPPING AND EAVESDROPPING § 15.4 (3d ed.

2007 & Supp. 2017) (explaining that “intrinsic minimization consists of attempting to screen out non-pertinent

conversations as each conversation is taking place”).

See id. § 15.5 (“Extrinsic minimization involves limiting the time period during which monitoring is

conducted.”); id. § 15.6 (explaining that dual recorder minimization records on two devices at once—on one

machine, investigators endeavor to listen only to pertinent conversations while on the other they record every

conversation in full to be used only for the purpose of rebutting charges they have deleted exculpatory remarks);

id. § 15.7 (explaining that after-the-fact minimization takes place when every conversation is recorded, but only

pertinent conversations are transcribed or re-recorded and the original tapes are sealed away).

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intelligence collection—legislators once again turned to minimization

procedures to safeguard privacy. Like Title III, FISA

—which sets out the rules

for the conduct of electronic surveillance inside the United States for foreign

intelligence purposes—includes procedural safeguards, such as minimization

procedures,

that reflect Congress’s understanding of what protections were

necessary to render FISA constitutional.

FISA minimization procedures were more expansive, however, than those

included in Title III.

Like searches of electronically stored information, foreign

intelligence collection is also difficult to limit meaningfully at the collection

stage. As Congress and the courts pointed out, “it may not be possible to avoid

acquiring all conversations” from a targeted phone line, rather than only those

relevant to the court order.

The intercepted communications will sometimes be

in code or in a foreign language for which there is no translator present,

100

and

sometimes the complexity of the investigation will make it difficult at the

moment of collection to discern the foreign intelligence value of any given piece

50 U.S.C. §§ 1801–1813 (2012).

S. REP. NO. 95-701, at 39 (1978), as reprinted in 1978 U.S.C.C.A.N. 3973, 4008; see also H.R. REP.

NO. 95-1283, at 54 (1978). Then-Attorney General Griffin Bell agreed that, “the American people need the

imposition of minimization standards” because there had been “too much dissemination . . . due to carelessness

or without thinking.” Foreign Intelligence Surveillance Act of 1978: Hearings on S. 1566 Before the S.

Subcomm. on Intelligence & the Rights of Ams. of the Select Comm. on Intelligence, 95th Cong. 24 (1977).

S. REP. NO. 95-701, at 13, as reprinted in 1978 U.S.C.C.A.N. at 3982 (The legislation “embodies a

legislative judgment that court orders and other procedural safeguards are necessary to insure that electronic

surveillance by the U.S. Government within this country conforms to the fundamental principles of the [F]ourth

[A]mendment.”); see, e.g., United States v. Duggan, 743 F.2d 59, 73 (2d Cir. 1984) (“FISA reflects both

Congress’s ‘legislative judgment’ that the court orders and other procedural safeguards laid out in [FISA] ‘are

necessary to insure that electronic surveillance . . . conforms to the fundamental principles of the [F]ourth

[A]mendment.’”), superseded by Uniting and Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 271

(2001), as recognized in United States v. Abu-Jihaad, 630 F.3d 102, 119–20 (2d Cir. 2010); Laura K. Donohue,

Section 702 and the Collection of International Telephone and Internet Content, 38 HARV. J.L. & PUB. POL’Y

117, 220 (2015) (“FISA was Congress’s express decision to curb executive power as a constitutional matter.”).

This understanding came, at least in part, from a 1972 Supreme Court decision rejecting the executive branch’s

long-term practice of warrantless wiretapping, which held that the Constitution did not permit electronic

surveillance of domestic security threats absent ex ante judicial approval. See also United States v. U.S. D. for

E.D. Mich., 407 U.S. 297, 320–23 (1972) (citing Camara v. Mun. Ct., 387 U.S. 523, 534–35 (1967)) [hereinafter

Keith].

Keith recognized that the procedural safeguards necessary for the conduct of foreign intelligence need

not be identical to those used for criminal investigations. Keith, 407 U.S. at 322 (“We recognize that domestic

security surveillance may involve different policy and practical considerations from the surveillance of ‘ordinary

crime.’ . . . Given these potential distinctions[,] . . . Congress may wish to consider protective standards for

[intelligence surveillance] which differ from those” in Title III).

S. REP. NO. 95-604, at 38 (1977).

100

In re Sealed Case, 310 F.3d 717, 740–41 (FISA Ct. Rev. 2002).

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of information.

101

As a result, FISA’s minimization requirements applied not

only to the collection of electronic communications, but also to the retention and

dissemination of that information.

102

In other words, recognizing the

inevitability of collecting communications entirely unrelated to the FISA-

approved investigation, Congress determined that minimization must also limit

how the government may use the information it collects.

103

Thus FISA

minimization procedures are defined as “specific procedures . . . that are

reasonably designed in light of the purpose and technique of the particular

surveillance, to minimize the acquisition and retention, and prohibit the

dissemination” of private information about Americans.

104

When subsequent

statutes further expanded foreign intelligence collection, those statutes also

required all three forms of minimization.

105

In both Title III and FISA, Congress entrusted the judge issuing a warrant or

surveillance order with determining what minimization requires in any given

instance. Congress envisioned a strong and continuing role for judges in

overseeing both the procedures themselves and the government’s compliance

with them. Under Title III, judges may insist that the government provide

periodic reports updating the judge on “what progress has been made toward

achievement of the authorized objective.”

106

FISA is even clearer on this point,

authorizing the judge, at any time, to “assess compliance with the minimization

procedures by reviewing the circumstances under which information . . . was

101

Id.

102

50 U.S.C. § 1801(h) (2012) (providing that minimization procedures must be “reasonably designed in

light of the purpose and technique of the particular surveillance [or physical search], to minimize the acquisition

and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting

United States persons”); see also DAVID S. KRIS & DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS

AND PROSECUTIONS § 9:1.50 (2016) (explaining that minimization procedures “require the government to

‘minimize’ the amount of irrelevant information that it acquires, retains, and disseminates”). The definition of

minimization requirements for electronic surveillance are codified at 50 U.S.C. § 1801(h) (2012); for physical

searches at 50 U.S.C. § 1821(4) (2012); and for access to tangible things at 50 U.S.C. § 1861(g)(1) (2012). All

of these provisions direct the Attorney General to promulgate detailed minimization procedures. 50 U.S.C.

§§ 1801(h), 1821(4), 1861(g)(1).

103

S. REP. NO. 95-701, at 17 (1978) (arguing that FISA would “provide adequate protection for

Americans” by “strengthen[ing] the ‘minimization’ requirements to limit strictly the dissemination of

information about U.S. persons”); see also Foreign Intelligence Surveillance Act of 1978: Hearings on S. 1566

Before the S. Subcomm. on Intelligence & the Rights of Ams. of the Select Comm. on Intelligence, 95th Cong.

220 (1977) (“[M]inimization procedures are a vital part of the bill because they regulate the acquisition,

retention, and most importantly, the dissemination of information about U.S. persons” “inadvertently swept up”

by FISA.).

104

50 U.S.C. § 1801(h)(1).

105

See infra Section II.B.2.

106

18 U.S.C. § 2518(6) (2012).

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acquired, retained, or disseminated.”

107

Moreover, a FISA judge “has the

discretionary power to modify the order sought, such as with regard to . . . the

minimization procedures,” must “monitor compliance with the minimization

procedures” it imposes, and may treat non-compliance with the minimization

procedures as contempt of court.

108

Congress clearly determined that courts are

the institutions best suited to assess minimization needs and to oversee their

implementation.

109

B. The Implementation of Minimization Procedures

This section will explore the various ways in which judges have employed

minimization procedures to address privacy concerns, first in the traditional

criminal context and then in various forms of foreign intelligence surveillance.

In practice they have played a much larger role in shaping FISA surveillance

than they have in shaping criminal investigations.

110

1. Minimization in Criminal Investigations

There are several methods that investigators may use to observe Title III’s

requirement that wiretaps be “conducted in such a way as to minimize the

interception”

111

of non-pertinent conversations.

112

In practice, however, if

Supreme Court cases are any indication, the directive to minimize criminal

wiretaps is often more honored in the breach. In Scott v. United States, the

Supreme Court held that wiretapping does not necessarily violate Title III or the

Fourth Amendment even if law enforcement officers “fail to make a good-faith

effort” to comply with the minimization requirement.

113

Then in United States

107

50 U.S.C. § 1805(d)(3) (2012).

108

S. REP. NO. 95-604, at 47, 49 (1977).

109

Id. at 48; see also S. REP. NO. 95-701, at 57 (1978); H.R. REP. NO. 95-1720, at 29 (1978) (“[A]t the

end of the period of time for which an electronic surveillance was approved . . . the judge may assess compliance

with the minimization procedures.”); see also 125 Cong. Rec. 10900 (Apr. 20, 1978) (statement of Sen. Evan

Bayh II, in support of an amendment, later adopted, clarifying the judiciary’s power to oversee the

implementation of minimization procedures); Helene E. Schwartz, Oversight of Minimization Compliance

Under the Foreign Intelligence Surveillance Act: How the Watchdogs are Doing Their Jobs, 12 RUTGERS L.J.

405, 439 (1981) (emphasizing the FISA Court’s independent role in assessing the sufficiency of minimization

procedures).

110

Note that Congress has expanded minimization in the foreign intelligence context to apply to other

forms of collection as well. 50 U.S.C. § 1822 (2012) (physical searches); 50 U.S.C. § 1842 (2012) (pen registers

and trap-and-trace devices); 50 U.S.C. § 1861 (2012) (business records and other tangible things); 50 U.S.C.

§ 1881a (2012) (communications of non-U.S. persons outside the United States).

111

18 U.S.C. § 2518(5) (2012).

112

See supra notes 93–94.

113

436 U.S. 128, 130 (1978) (instructing courts to assess whether failure to minimize was reasonable “in

light of the facts and circumstances” investigators faced).

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v. Kahn, the Supreme Court held that law enforcement officials need not

minimize crime-related conversations even if the conversation’s participants

were not the individual(s) identified in the warrant as a person “whose

communications are to be intercepted.”

114

In light of Scott and Kahn, the role of minimization procedures has been

relatively minimal in the Title III context. Rather than imposing meaningful

checks on the government’s exercise of power as Congress intended, “the

minimization provision plays at best a diminished role in protecting privacy of

those being investigated.”

115

As an example, in Bynum v. United States, Justice

Brennan dissented from the Supreme Court’s denial of certiorari to review the

Second Circuit’s determination that investigators met minimization

requirements when they intercepted seventy-one calls by the defendant’s

teenage babysitter, “who was totally innocent of any knowledge of her

employer’s criminal enterprise.”

116

2. Minimization in Foreign Intelligence Surveillance

Edward Snowden’s massive leak of intelligence information in the summer

of 2013, along with documents the government declassified in response, ended

the decades-long obscurity that FISA minimization procedures had enjoyed. A

close look at the orders issued by the FISA Court over the past fifteen years

reveals resourceful use of minimization procedures as bulwarks against threats

to individual privacy rights.

117

Through creativity and assertive exercise of the

oversight power both inherent in the judiciary and statutorily conferred on the

FISA Court, FISA judges were able to cabin some of the broadest government

information-collection authority ever exercised.

FISA minimization procedures are much more conspicuous than their Title

III counterparts because they apply to retention and dissemination as well as

collection.

118

Variables such as which type of intelligence collection is at issue,

which agencies are involved, and the nature of the target all will impact what

minimization requires. Each agency that handles foreign intelligence develops

its own standard minimization procedures tailored to that agency’s mission and

authority.

119

In many cases, the standard procedures are sufficient, but FISA

114

415 U.S. 143, 152 (1974).

115

FISHMAN & MCKENNA, supra note 93, at § 15:8.

116

423 U.S. 952, 954 (1975) (Brennan, J., dissenting from denial of certiorari).

117

See Berman, Quasi-Constitutional Protections, supra note 31, at 790–817.

118

In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002).

119

See KRIS & WILSON, supra note 102, at § 9:3 (“Shortly after FISA’s enactment, ‘standard minimization

procedures’ were created for various kinds of electronic surveillances . . . .”); FBI, STANDARD MINIMIZATION

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judges can—and do—sometimes tailor the procedures to address issues arising

in a particular circumstance.

120

What follows is a discussion of how minimization procedures manifest in

various forms of foreign intelligence surveillance. It begins with so-called

traditional FISA, the common label for the surveillance mechanism set up in the

original FISA statute in 1978. It then turns to two surveillance programs

authorized by the FISA Amendments Act of 2008. And finally, it examines the

minimization procedures imposed on two metadata collection programs based

on a provision of the USA PATRIOT Act.

a. “Traditional” FISA

Under traditional FISA surveillance of electronic communications—i.e.,

FISA as it was enacted in 1978—minimization tends to take place at the

retention and dissemination stage, as Congress anticipated.

121

Retention

minimization happens after the information is reduced to an “intelligible form”

by decoding, translating, or otherwise rendering collected information

readable.

122

If “the information seized is or might be foreign intelligence

information,” the reviewing agent will log that information “into the FBI’s

records and [file it] in a variety of storage systems from which it can be retrieved

for analysis.”

123

If, on the other hand, she finds that the information “could not

be foreign intelligence information or are not evidence of a crime,” she will

minimize by discarding, erasing, destroying, or (more often) not including the

information in the indexing log.

124

As for dissemination, the agency in

PROCEDURES FOR FBI ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCH CONDUCTED UNDER THE FOREIGN

INTELLIGENCE SURVEILLANCE ACT 4 (2008) (setting out the FBI’s standard minimization procedures). FISA

requires the Attorney General to promulgate “specific procedures” for minimization that will be filed with the

FISA Court for every individual target. 50 U.S.C. § 1801(h)(1).

120

Schwartz, supra note 109, at 416 (citing interviews with executive branch officials); Banks, supra note

79, at 1659–60 (“[T]he court may modify the procedures and order that the modified procedures be followed if

it finds that the [government’s] proposed procedures do not satisfy the FISA definition.”); KRIS & WILSON, supra

note 102, at § 9:3.

121

Note that FISA authorizes electronic surveillance, physical searches, the collection of tangible things,

and the collection of data from pen registers and trap-and-trace devices. With minimal exceptions, minimization

is defined in the same way for each of these forms of collection. 50 U.S.C. §§ 1801(h), 1805, 1881a (2012).

Unlike the provisions governing electronic surveillance and physical searches, the definition of the minimization

of tangible things does not include collection minimization at all. 50 U.S.C. § 1861(g)(2) (2012).

122

In re All Matters Submitted to the Foreign Intelligence Surv. Ct, 218 F. Supp. 2d 611, 617–18 (FISA

Ct. 2002).

123

Id. at 618.

124

Id.; Schwartz, supra note 109, at 411 (quoting H.R. REP. NO. 95-1283, at 56 (1978)) (Transcripts of a

suspected spy’s wife’s “conversations might be retained for a reasonable period until it could be determined

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74 EMORY LAW JOURNAL [Vol. 68:49

possession of the information may disseminate it only after all U.S. persons’

names and personal identifiers are redacted.

125

b. The FISA Amendments Act: PRISM

The FISA Court has also overseen electronic surveillance under statutory

provisions enacted more recently—especially sections of the USA PATRIOT

Act

126

and the FISA Amendments Act (FAA).

127

FAA collection is sometimes

referred to as “Section 702” collection, for the section of the FAA that codified

the power. When using Section 702 authority, the National Security Agency

(NSA) used the code word “PRISM” when it collected a target’s electronic

communications from their communications service provider.

128

By contrast,

when the government acquired a target’s communications by capturing the

information directly from the Internet “backbone” as it transits the web, it is

known as “upstream” collection.

129

It is in the context of these new programs

that the FISA Court began to get creative with the use of minimization as a

constitutional stop-gap.

The new type of minimization procedures that the FISA Court imposed on

the PRISM program was a response to the ways in which the FAA collection

authority differed from traditional FISA authority. As an initial matter, the

definition of who may be targeted is much more capacious under the FAA.

While traditional FISA requires probable cause that the target is an agent of a

foreign power, the FAA requires only that the target is a non-U.S. person

“reasonably believed to be outside the United States” and that the collection is

undertaken for foreign intelligence purposes.

130

This means the bar the

government must clear to engage in FAA surveillance is far lower than it had

been before—it represented a significant expansion of the government’s

collection authority.

whether she too was culpable,” after which, if she were uninvolved, the information would be “destroyed or

reduced to an essentially non-usable form.”).

125

KRIS & WILSON, supra note 102, at § 9:7. The statute creates an exception for this restriction when

“such person’s identity is necessary to understand foreign intelligence information or assess its importance” or

is evidence of a crime. 50 U.S.C. §§ 1801(h)(2), 1821(4)(B); In re All Matters, 218 F. Supp. 2d at 618.

126

USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272–73 (2001).

127

Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122

Stat. 2436, 2438 (codified at 50 U.S.C. § 1881a (2012)).

128

E.g., James Bamford, They Know Much More than You Think, N.Y. REV. BOOKS, Aug. 15, 2013

(describing PRISM as giving the NSA access to data from individual companies).

129

Id. (quoting NSA slide describing upstream collection as a “collection of communications on fiber

cables and infrastructure as data flows past”).

130

50 U.S.C. § 1881a(g)(2).

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At the same time, the FISA judge’s role in choosing those overseas targets

was far more circumscribed under the FAA. Traditional FISA surveillance

requires a FISA judge to assess ex ante the validity of each surveillance target.

131

This requires the judge to determine, among other things, that there is probable

cause that the target is an agent of a foreign power and that the proposed

minimization procedures are sufficient.

132

In other words, as with Title III

warrants, each target must be individually approved by an Article III judge.

Section 702 surveillance, by contrast, allows the executive branch itself to select

targets. The government must establish rules governing how targets will be

selected,

133

and the FISA Court must agree that those targeting rules are

sufficiently likely to identify only non-U.S. persons outside the United States.

134

Once the rules are approved, however, the FISA Court has no role in assessing

the propriety of individual surveillance targets.

135

The same process applies to

minimization procedures—the government must submit to the FISA Court

proposed minimization procedures for its approval,

136

but the court has no role

in calibrating them on a target-by-target basis.

137

Once the FISA Court approves

the government’s general minimization procedures, the government follows a

one-size-fits-all approach that simply applies these pre-approved procedures to

all Section 702 surveillance.

The FISA Court responded to this simultaneous expansion of surveillance

authority and constriction of the scope of judicial review by adding new

safeguards to the minimization procedures it approved. They go beyond

traditional FISA practices of simply indexing only the information that might

qualify as foreign intelligence and determining which communications may be

disseminated under what circumstances. Section 702’s PRISM minimization

rules include, for example, guidelines governing what to do when an agency

discovers that, contrary to statutory requirements, a target turns out to be either

131

50 U.S.C. § 1805(a)–(b) (2012).

132

Id. § 1805(a)(3)–(4).

133

See ERIC H. HOLDER, U.S. DEP’T OF JUSTICE, MINIMIZATION PROCEDURES USED BY THE NATIONAL

SECURITY AGENCY IN CONNECTION WITH ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION PURSUANT

TO SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978, AS AMENDED (2011).

134

50 U.S.C. § 1881a(i)(2). Some argue that this difference renders the regime unconstitutional. See

generally Donohue, supra note 97, at 134 (“The incidental collection of large quantities of U.S. persons’

international communications, the scanning of content for information ‘about’ non-U.S. person targets, and the

interception of non-relevant and entirely domestic communications in multi-communication transactions . . . fall

outside the reasonableness component of the Fourth Amendment.”). A challenge to the constitutionality of the

FAA was dismissed for lack of standing. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013).

135

50 U.S.C. § 1881a(a) (granting the Attorney General and the Director of National Intelligence, rather

than a FISA court, the authority to jointly authorize surveillance of individuals).

136

See ERIC H. HOLDER, supra note 133.

137

50 U.S.C. § 1881a(g)(2).

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a U.S. person or inside the United States.

138

They include limits on who may

access Section 702-acquired information and what records of that access the

government must maintain.

139

They impose requirements for tagging stored

information as FAA-acquired and removing identifying information for U.S.

persons from that information.

140

They place limits on the use of “sensitive

information”—defined as information consisting of religious academic,

political, or highly personal activities as well as medical information and

information about minors

141

—and instruct the government how to handle

information that falls within the attorney-client privilege or provides evidence

of a crime.

142

This non-exhaustive list gives a sense of the nature of the

minimization required. Thus recognizing that the more permissive collection

rules that governed PRISM collection risked more over-collection than

traditional FISA, and lacking the ability to oversee each decision regarding who

to target, the FISA Court enlisted a more fulsome regulatory regime regarding

the use and dissemination of PRISM information to account for Americans’

privacy interests.

c. The FISA Amendments Act: “Upstream” Collection

The FISA Court’s oversight of Section 702 upstream collection provides an

even more vivid example of minimization’s potential. Due to technological

constraints related to how information transits the Internet, Section 702 upstream

collection of electronic communications directly from the Internet backbone was

necessarily overbroad.

143

It was inescapable that upstream collection was

capturing some unpredictable—though not negligible—number of entirely

138

E.g., LORETTA E. LYNCH, U.S. DEP’T OF JUSTICE, MINIMIZATION PROCEDURES USED BY THE FEDERAL

BUREAU OF INVESTIGATION IN CONNECTION WITH ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION

PURSUANT TO SECTION 702 OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978, AS AMENDED 4 (2016).

139

E.g., id. at 6–8.

140

E.g., id. at 9.

141

E.g., id. at 10.

142

Id. at 12–13.

143

PRIVACY & CIVIL LIBERTIES OVERSIGHT BD., EXEC. OFFICE OF THE PRESIDENT, REPORT ON THE

SURVEILLANCE PROGRAM OPERATED PURSUANT TO SECTION 702 OF THE FISA 6 (2014) [hereinafter PCLOB

SECTION 702 REPORT] (noting that collection could not be limited to communications to and/or from a specific

target but would also capture any communications “concerning” the target); id. at 39 (explaining that information

moves across the Internet in the form of “transactions,” which are bundles of data, and some—known as

multiple-communications transactions (MCTs)—contain within them multiple discrete communications);

[REDACTED], No. PR/TT [REDACTED], at 31 (FISA Ct. Oct. 3, 2011) (explaining that the NSA’s upstream

Internet collection devices cannot distinguish MCTs from transactions containing only a single discrete

communication). Nor can the NSA “identify the parties to any particular communication within a transaction”

prior to collection. Id. at 43. The NSA discontinued “about” collection in April 2017. Charlie Savage, N.S.A

Halts Collection of Americans’ Emails About Foreign Targets, N.Y. TIMES (Apr. 28, 2017), https://www.

nytimes.com/2017/04/28/us/politics/nsa-surveillance-terrorism-privacy.html.

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domestic communications unrelated to any surveillance target.

144

Personal

communications of U.S. persons who were not valid targets were inevitably

being acquired in the process.

To satisfy itself that upstream’s inevitable over-collection was

constitutional, the FISA Court once again relied upon an expanded menu of

minimization procedures, specifically at the retention stage. In a 2011 opinion,

the FISA Court determined that—despite its overbroad nature—upstream

collection did not require additional minimization rules because it was already

as narrowly targeted as technology permitted.

145

But because that targeting could

only be so narrow, it was all the more important for the NSA’s retention

minimization to adequately minimize information “not relevant to the authorized

purpose of the acquisition”—i.e., wholly domestic communications.

146

In this,

the FISA Court found, the upstream retention procedures were insufficient.

The FISA judge’s means of addressing this concern demonstrates one

method by which the government and a judge with ongoing oversight authority

can craft case-specific ways to limit privacy intrusions in even in the most

technologically complex collection contexts. The FISA judge suggested and the

government adopted a series of additional retention minimization procedures

that were tailored specifically to challenges posed by upstream collection. These

additional procedures restricted access to databases most likely to contain

wholly domestic communications; required domestic communications to be

purged from the system when identified as such; provided that information

collected through the upstream program would be permanently tagged with that

status in government databases, alerting users to the fact that the data is

particularly sensitive; and limited retention of upstream-acquired information to

two years, rather than the PRISM standard of five years.

147

In light of these

additional safeguards, the Court subsequently determined that the program was

statutorily and constitutionally sound.

148

144

[REDACTED], No. PR/TT [REDACTED], at 32–36 (FISA Ct. Oct. 3, 2011); PCLOB SECTION 702

REPORT, supra note 143, at 121 (“[N]o one knows how many wholly domestic communications the NSA may

be acquiring each year.”).

145

[REDACTED], No. PR/TT [REDACTED], at 47–48 (FISA Ct. Oct. 3, 2011).

146

Id. at 59–61, 78 (NSA’s minimization procedures enhanced “the risk of error, overretention, and

dissemination of non-target information, including information protected by the Fourth Amendment”).

147

[REDACTED], No. PR/TT [REDACTED], at 7–11 (FISA Ct. Nov. 30, 2011).

148

Id. at 14.

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d. Metadata Collection

Two communications metadata collection programs—one that collected

Internet metadata and another that collected telephony metadata—provide the

most dramatic example of minimization’s ability to compensate for overbroad

collection.

149

The first program used an expansive interpretation of FISA’s

provision authorizing the use of a pen register or trap-and-trace device (pen/trap)

to acquire Internet metadata about Americans’ electronic communications, such

as email routing and addressing information.

150

The second program used a

similarly aggressive interpretation of Section 215 of the USA PATRIOT Act,

151

to collect all domestic and international telephony metadata—information such

as telephone numbers dialed and the date, time, and duration of the call.

152

These

programs had no targeting rules at all. Instead, the NSA collected everyone’s

data and then queried the resulting databases using phone numbers or email

addresses associated with known terrorists in an effort to determine who might

be in contact with them.

153

The FISA Court acknowledged that its approval of these programs permitted

the government to engage in an “exceptionally broad form of collection” in

which “only a very small percentage” of the information collected would be

“directly relevant” to an investigation.

154

Such over-collection was necessary

because, according to the FISA Court, “the subset of terrorist communications

is ultimately contained within the whole of the metadata produced, but can only

be found after the production is aggregated and then queried . . . [so] the whole

production is relevant to the ongoing investigation out of necessity.”

155

149

Both programs have been discontinued. Brian Bennett, The NSA Will Stop Collecting U.S. Phone Data.

Now What?, L.A. TIMES (June 3, 2015), http://www.latimes.com/nation/nationnow/la-na-nsa-phone-data-

20150603-story.html; PCLOB SECTION 702 REPORT, supra note 143, at 38; OFFS. OF INSPECTORS GEN’L OF THE

DEP’T OF DEF., DEP’T OF JUSTICE, CIA, NAT’L SECURITY AGENCY & OFFICE OF THE DIR. OF NAT’L INTEL.,

UNCLASSIFIED REPORT ON THE PRESIDENT’S SURVEILLANCE PROGRAM 29 (July 10, 2009). But see Charlie

Savage, N.Y. TIMES, File Says N.S.A. Found Way to Replace Email Program (Nov. 19, 2015), https://www.

nytimes.com/2015/11/20/us/politics/records-show-email-analysis-continued-after-nsa-program-ended.html

(reporting that the NSA found a “functional equivalent” for the program overseas).

150

Pen registers record outgoing communication information, such as the numbers called from a particular

phone; trap-and-trace devices record information about incoming communications. See 50 U.S.C. § 1842 (2012)

(foreign intelligence investigations); 18 U.S.C. § 3127 (2012) (criminal investigations).

151

See In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible

Things from [REDACTED], No. BR 13-109, at 9 (FISA Ct. Aug. 29, 2013).

152

Id. at 2 n.2.

153

PCLOB SECTION 702 REPORT, supra note 143, at 41, 48.

154

[REDACTED], No. PR/TT [REDACTED], at 23, 48 (FISA Ct. July 14, 2004) [hereinafter FISC’s

Pen/Trap Opinion].

155

In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible

Things from [REDACTED], No. BR 13-109, at 22 (FISA Ct. Aug. 29, 2013).

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Recognizing that the “raw volume of the proposed collection is enormous” and

that the programs authorized the government to acquire “[metadata] pertaining

to communications of U.S. persons located within the United States who are not

the subject of any FBI investigation,”

156

the Court concluded that the program

“carries with it a heightened risk that collected information could be subject to

various forms of misuse.”

157

Due to the enormity of the inevitable over-

collection, the FISA Court in this context relied again on program-specific

minimization procedures to limit the impact on Americans’ privacy.

For our purposes, it is important to note that the FISA Court determined that

the Fourth Amendment did not apply to the collection in either of these

programs, and only the telephony metadata collection had statutory

minimization requirements.

158

Nevertheless, because the programs represented

“an extraordinarily broad implementation of a type of surveillance that Congress

has regulated by statute, even in its conventional, more narrowly targeted

form,”

159

the Court deemed strict procedural protections necessary even where

no statutory or constitutional mandate existed.

160

When Congress enacted the

USA FREEDOM Act of 2015, the culmination of the public debate sparked by

Edward Snowden’s 2013 leak, it endorsed the FISA Court’s actions in this

regard.

161

The primary purpose of the legislation was to strengthen privacy rights

in the context of metadata collection. To accomplish this goal, Congress codified

both the majority of the minimization procedures, described below, that the

156

Id. at 39 (quoting government application).

157

Id. at 68.

158

Because both programs collected only metadata, the government and the FISA Court deemed the

Fourth Amendment inapplicable based on the third party doctrine, which states that the Fourth Amendment does

not regulate government collection of information you have voluntarily provided to a third party, such as your

phone records. See Smith v. Maryland, 442 U.S. 735, 745–46 (1979) (no Fourth Amendment protection for

phone call metadata); United States v. Miller, 425 U.S. 435, 443 (1976) (no Fourth Amendment protection for

bank records). Section 215 did include a statutory mandate to minimize. But since minimization procedures need

only be “reasonably designed in light of the purpose and technique” of collection under 50 U.S.C. § 1861(g), it

is likely that minimization procedures for non-content, non-Fourth Amendment-protected information like

telephony metadata need not be particularly stringent.

159

FISC’s Pen/Trap Opinion, at 69, 80–87 (FISA Ct. July 14, 2004).

160

Unlike upstream collection of communications content under Section 702 of the FAA and some

business records orders issued under Section 215, pen/trap devices will never collect anything other than

communications metadata—i.e., non-content information that is unprotected by the Fourth Amendment. See

supra text accompanying note 158 (explaining third party doctrine). This likely explains the lack of minimization

requirement in this provision at the time.

161

USA FREEDOM Act of 2015, Pub. L. No. 114-23, § 104(a)(3), 129 Stat. 268, 272 (2015) (to be

codified at 50 U.S.C. 1861(c)(1)).

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80 EMORY LAW JOURNAL [Vol. 68:49

FISA judges had insisted upon

162

and the FISA Court’s conclusion that all

communications metadata collection must be subject to minimization.

163

The restrictions the FISA Court imposed on the metadata collection

programs were both procedural and substantive.

164

Many of the procedural

protections resembled those previously imposed on Section 702-acquired data:

access to the metadata databases was limited to authorized analysts by requiring

a user name and password, records of which would be maintained for auditing

purposes;

165

all queries of the databases containing the information collected

under these programs had to be approved by one of a limited number of senior

officials;

166

and that information would only be available for a limited time.

167

The order also included a ninety-day limit on the length of the authorized

surveillance.

168

When applying for reauthorization at the end of each ninety-day

period, the FISA Court required the government to include a report discussing

the queries that had been made since the previous application and describing any

proposed changes.

169

Other minimization rules were substantive and entirely novel: First, the

Court imposed a Reasonable Articulable Suspicion (RAS) standard on database

queries, which required the government to conclude prior to running a query

regarding any specific search term that, “based on the factual and practical

considerations of everyday life on which reasonable and prudent persons act,

there are facts giving rise to a reasonable articulable suspicion that a particular

known [redacted—probably email or IP address] is associated with [redacted—

probably international terrorist organization or Al Qaeda].”

170

This requirement

served to limit government access to Internet or communications metadata to

individuals about whom the government had individualized reasons to suspect

involvement in international terrorism. Much in the way a warrant requires the

government to demonstrate probable cause before engaging in a search, the RAS

162

Id. § 101(b)(3), 129 Stat. at 270 (to be codified at 50 U.S.C. § 1861(c)(2)).

163

See id. § 202(a), 129 Stat. at 277–78 (requiring “privacy procedures” when employing pen/trap

devices) (to be codified at 50 U.S.C. § 1842(h)).

164

E.g., Memorandum of Law and Fact in Support of Application for Pen Registers and Trap and Trace

Devices for Foreign Intelligence Purposes at 3, [REDACTED], No. PR/TT [REDACTED] (FISA Ct. 2004);

FISC’s Pen/Trap Opinion, at 69–70.

165

FISC’s Pen/Trap Opinion, at 83.

166

Id. at 84.

167

Id. at 85–86.

168

Id. at 80.

169

Id. at 86–87.

170

Id. at 57.

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standard limited the government’s access to this vast trove of information to

instances in which there was objective evidence that justified doing so.

171

The FISA Court also imposed limits on the type of analysis to which the

information could be subjected, and modified the minimization procedures

imposed on these bulk collection programs over time to address concerns that

arose in the course of their implementation.

172

Finally, unable to monitor the

government’s implementation of these rules on a daily basis, the FISA Court

assigned that role to the NSA Office of General Counsel.

173

That office had to

ensure that analysts with access to the metadata received adequate training,

monitor compliance with the RAS standard, and review the legal adequacy of

the basis of any query about a U.S. person’s account.

174

As with the Section 702

upstream program, the court’s authority to impose, modify, and oversee

compliance with minimization procedures empowered it to confine the privacy

risks presented by these programs whose very design included over-broad

collection.

Minimization procedures can therefore serve to constrain government power

in contexts where technological change has resulted in inevitable over-

collection. Indeed, they can supply necessary protections even in the absence of

statutory requirements. The next Part considers the implications of this lesson

beyond the FISA context.

171

See Berman, Quasi-Constitutional Protections, supra note 31, at Section III.A. (arguing that the FISA

Court’s minimization procedures for the bulk metadata collection programs were stand-ins for the traditional

warrant requirements of an ex ante showing of probable case and particularity).

172

After the government informed the FISA Court in 2009 of a number of instances of government non-

compliance, the FISA Court imposed additional minimization requirements: the Justice Department had to

review a sample of the NSA’s justifications for querying data once every ninety days, twice every ninety days

the NSA’s Office of General Counsel (subsequently substituted with the Justice Department’s National Security

Division) conducted random spot checks, In re Application of the Fed. Bureau of Investigation for an Order

Requiring the Prod. of Tangible Things from [REDACTED], No. BR 06-05, at 8, 10 (FISA Ct. Aug. 18, 2006),

and the NSA had to submit periodic reports to the FISA Court regarding the queries it had conducted and the

information it had disseminated. Order Regarding Further Compliance Incidents, In re Application of the Fed.

Bureau of Investigation for an Order Requiring the Prod. of Tangible Things from [REDACTED], No. BR 09-

13, at 3 (FISA Ct. Sept. 25, 2009); In re Application of the Fed. Bureau of Investigation for an Order Requiring

the Prod. of Tangible Things from [REDACTED], No. BR 09-06, at 7 (FISA Ct. June 26, 2009).

173

FISC’s Pen/Trap Opinion, at 84–85 (FISA Ct. July 14, 2004); Order Regarding Further Compliance

Incidents, In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible

Things from [REDACTED], No. BR 09-13, at 3 (FISA Ct. Sept. 25, 2009).

174

FISC’s Pen/Trap Opinion, at 84.

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III. MINIMIZATION PROCEDURES: MITIGATING PRIVACY CONCERNS IN

DIGITAL SEARCHES

This Part makes the case that magistrate judges should employ minimization

procedures to mitigate Fourth Amendment concerns in digital searches. As noted

above, some magistrate judges have, in fact, been including in their warrants ex

ante limits on the parameters of digital searches, though almost never actually

referring to them as “minimization procedures.”

175

Section A will explain the

benefits of both adopting the minimization label and embracing the use of the

tool. Section B will then address the policy-based objections to this practice and

argue that ex ante minimization requirements are, in fact, a superior means of

addressing the concerns raised by digital searches than reliance on ex post

judicial review. Finally, section C will make the case that, despite the absence

of a statutory mandate, magistrate judges do in fact have the authority to impose

these requirements.

A. Minimization’s Untapped Potential

Adopting the “minimization” label for magistrate judges’ ex ante search

instructions would yield several benefits. First, it would recognize that digital

searches present a problem for which the law already has generated a solution.

As the FISA Court’s experience demonstrates, minimization procedures can

address Fourth Amendment concerns that arise when a particular investigative

technique risks significant over-collection.

176

Recall that the original purpose of

FISA minimization was to force the government to segregate evidence that it

was authorized to collect from other, Fourth Amendment-protected

information.

177

The mechanism Congress and the Supreme Court settled on for

this task was to expand the concept of minimization from its origins as a means

of preventing over-collection—through wiretap-collection minimization—to

address circumstances when over-collection is unavoidable—through retention,

use, and dissemination minimization.

178

175

There are a few exceptions. See, e.g., United States v. Galpin, 720 F.3d 436, 451 (2d Cir. 2013); Gmail

Account, 33 F. Supp. 3d 386, 396 (S.D.N.Y. 2014); In re the Search of Info. Associated with

[redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 25 F. Supp. 3d 1, 5 (D.D.C. 2014).

176

Note that not everyone considers FISA minimization an unparalleled success. Some argue that some

of the government’s surveillance programs, like Section 702 for example, are simply unconstitutional on their

face. To those holding this view, minimization procedures might be seen as an effort to put a Band-Aid on a

gaping wound, providing the appearance, but not the substance, of constitutional constraints. See, e.g., Donohue,

supra note 97, at 124.

177

See supra Section II.A.

178

See Katz v. United States, 389 U.S. 347, 352 (1967); Berger v. New York, 388 U.S. 41, 44 (1967);

Pub. L. No. 90–351, 82 Stat. 197 (codified as amended at 18 U.S.C. §§ 2510–2522 (2012)).

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Digital searches present a conceptually analogous problem to the one posed

by FISA surveillance in that, as Rule 41’s two-step process recognizes, it is often

not possible at the point of collection to limit the seizure of digital evidence to

material covered by the warrant. The challenge therefore, as with FISA

surveillance, is to devise a way to limit post-collection privacy intrusions. In

imposing ex ante limits, magistrate judges recognized how technological

innovation had given rise to this same problem in a new context and simply

applied to that new context a proven, accepted technique of safeguarding

constitutional rights.

179

The fact that most magistrates did not consciously

invoke the idea of minimization to justify ex ante limitations on searches does

nothing to undermine the force of this argument. Whether consciously or

unconsciously, these judges saw the need to impose post-collection privacy

safeguards and implemented them.

180

Embracing the term “minimization” thus

recasts what some have characterized as a “revolt” into merely the

implementation of a long-standing, battle-tested privacy-protection tool.

Second, characterizing magistrates’ practice of imposing ex ante limits as

minimization procedures highlights the effectiveness of the practice. As

discussed in Part II, FISA judges were able to develop minimization strategies

that accounted for privacy concerns while still permitting the government to

pursue its desired counterterrorism and counterintelligence policies, even as

those policies expanded in scope. For technological reasons stemming from the

nature of Internet traffic, the requirements of sophisticated data analysis, and the

difficulty in pinpointing the location of particular individuals and electronic

devices, several FISA surveillance programs implemented in the decade after

9/11 presented Fourth Amendment challenges.

181

The FISA Court, charged with

ensuring that these programs comported with constitutional requirements, had

two options. It could simply have denied the government authority to engage in

the type of collection it sought despite that collection’s national security value.

Or it could find a way to curtail the privacy threat those programs posed.

Minimization thus served to protect individual privacy rights while

acknowledging the government’s investigative needs. Moreover, these strategies

were able to adapt as technology—and the government’s surveillance programs

themselves—grew and changed.

179

See, e.g., supra cases cited in notes 51–56.

180

See, e.g., United States v. Ganias, 755 F.3d 125, 140 (2d Cir. 2014), rev’d en banc on other grounds,

824 F.3d 199 (2d Cir. 2016).

181

See, e.g., [REDACTED], No. PR/TT [REDACTED], at 31 (FISA Ct. Oct. 3, 2011); U.S. DEP’T OF

JUSTICE, THE FISA AMENDMENTS ACT: Q&A 2 (2017) (describing the impact of technological change on

government surveillance authorities), https://fas.org/irp/agency/doj/fisa/faa-fact.pdf.

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84 EMORY LAW JOURNAL [Vol. 68:49

To be sure, minimization did not eliminate all privacy threats, and it

increased the administrative burden on the government. But the Fourth

Amendment does not deal in absolutes. As the Supreme Court repeatedly

reminds us, the touchstone of the Fourth Amendment is reasonableness, and

whether a search or seizure is reasonable ultimately rests on whether it

successfully balances the government’s interest against those of individuals.

182

The FISA Court’s jurisprudence provides an example of how minimization

empowers courts with tools they can use to calibrate this balance.

Third, pointing to the parallel between minimization and magistrates’ ex ante

requirements illustrates the critical role judges play in addressing case-specific

privacy concerns. There are no particular procedures that are inherently part of

“minimization” as a concept. Rather, minimization is any set of procedures

“reasonably designed in light of the purpose and technique” of information

collection “to minimize the acquisition and retention, and prohibit the

dissemination,” of information whose collection is not authorized.

183

Consider

the modification of minimization rules undertaken to shore up the privacy

protections of Section 702 upstream collection.

184

Those procedures were

tailored very specifically to that form of collection and its unique challenges.

Recognizing that it was impossible for the NSA to avoid the acquisition of some

domestic U.S. person communications, the FISA judge in that case focused on

how modifications to retention rules might ameliorate privacy concerns.

185

And

in developing those enhanced retention rules, the judge took into account the

structure of the databases containing Section 702-acquired information as well

as the NSA’s internal procedures for handling the raw intelligence.

186

Magistrate

judges can exhibit similar flexibility in their efforts to tailor ex ante rules in ways

that enable the government to successfully locate digital contraband without

exceeding constitutional limits.

Indeed, the FISA Court’s experience demonstrates how judges and the

government can form an effective team for designing ways to meet the needs of

both privacy and effective investigation. Recognizing the legitimacy of the

judges’ ongoing oversight authority encourages a partnership, rather than an

182

E.g., Riley v. California, 134 S. Ct. 2473, 2482 (2014) (“[T]he ultimate touchstone of the Fourth

Amendment is ‘reasonableness.’”); United States v. Ramirez, 523 U.S. 65, 71 (1998) (“The general touchstone

of reasonableness which governs Fourth Amendment analysis . . . governs the method of execution of the

warrant.”).

183

50 U.S.C. § 1801(h)(1) (2012).

184

See supra Section II.B.2.

185

[REDACTED], No. PR/TT [REDACTED], at 59–61, 78 (FISA Ct. Oct. 3, 2011).

186

Id.

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adversarial relationship, between the government and the court. There were

multiple FISA-related instances where the government only discovered

technical limitations or systemic (though inadvertent) non-compliance due to its

obligations to report back to the FISA Court periodically, which provided the

court with the opportunity to adjust the applicable minimization procedures.

187

Viewing ex ante restrictions on digital searches as minimization procedures

allows judges to assume this role and empowers them to craft, along with the

government, a set of rules for each search that both protects Fourth Amendment

interests and recognizes the government’s investigative needs.

Fourth and finally, explicitly adopting minimization procedures as the means

of regulating digital searches will draw both the government and magistrates’

attention to the wealth of specific, innovative examples that the FISA Court’s

jurisprudence provides. Recall the broad range of requirements that the FISA

Court developed to facilitate judicial oversight of surveillance programs. FISA

Court orders dictated what information could be retained and under what

circumstances.

188

They restricted who could access certain information and what

sort of internal executive branch oversight was necessary. They required

periodic reports on how orders were implemented.

189

They limited what type of

analysis the government could employ on data garnered through bulk collection

programs—i.e., search protocols. They imposed substantive standards that the

government had to meet before accessing information it had collected.

Magistrate judges imposing minimization procedures could employ some of

these methods, or they might feel empowered to follow in the FISA Court’s

footsteps and devise their own additional context-specific measures where

appropriate. They could require supervisory oversight of search procedures.

They could insist that the government provide audit logs indicating exactly what

kinds of analysis it performed. They could adopt traditional FISA’s common

means of acquisition minimization by barring investigators from documenting

non-responsive material, thus making it more difficult to access in the future.

The list is endless and infinitely malleable, allowing courts to adapt not only to

each investigation but also as technology changes. This is a powerful tool to

have available when the pace of technological change means that minimization

needs will evolve over time, as both criminals and government agencies continue

to exploit the latest digital tools.

187

See supra note 172 and accompanying text.

188

See supra Section II.B.2.

189

See supra Section II.B.2.d.

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B. The Advantages of Ex Ante Minimization Over Ex Post Judicial Review

Despite the benefits of embracing minimization procedures in both name and

substance, the government and some commentators have expressed resistance to

the idea that magistrate judges should be taking on this role as a policy matter.

Professor Orin Kerr argues, for example, that rather than imposing ex ante limits,

magistrates should allow the rules regarding digital searches to develop through

ex post judicial review.

190

This would mean that magistrates would simply issue

warrants, law enforcement would execute those warrants, and judges would

assess the constitutionality of that execution if and when a criminal defendant

moved for the court to suppress the fruits of the search. Ex post review is

preferable, opponents of ex ante minimization rules argue, for three reasons:

first, permitting magistrates to impose ex ante limits will impose unnecessary

restrictions on government searches;

191

second, magistrates and prosecutors lack

the ability to predict search needs;

192

and finally, the use of ex ante instructions

will impede higher courts’ development of Fourth Amendment requirements

when it comes to computer searches.

193

With respect to the concern that ex ante limits place constraints on

government investigators that are too strict and thereby impede effective

investigations, there are at least two responses. First, if the government begins

to execute a warrant and determines that it needs broader searching capabilities

or an extension of time limits, there is nothing that prevents returning to the

magistrate for a modification of the existing warrant or applying for a new

warrant. Indeed, when investigators executing a warrant authorizing a search for

evidence of drug trafficking found evidence of child pornography as well, the

Tenth Circuit held that upon first discovering child pornography, they should

have applied for a second warrant before seeking out additional evidence of child

pornography.

194

Second, courts imposing ex ante limits do not do so to dictate

how searches will be executed. Instead, they seek “a sophisticated technical

190

See Kerr, Ex Ante Regulation, supra note 21, at 1278–80.

191

See Three Hotmail Email Accounts, No. 16-MJ-8036-DJW, 2016 WL 1239916, at *16 (D. Kan. Mar.

28, 2016) (describing objections) (citing In re Appeal of Application for Search Warrant, 71 A.3d 1158, 1171

(Vt. 2012)).

192

See Gmail Account, 33 F. Supp. 3d 386, 400 (S.D.N.Y. 2014) (“Our inability to predict the best

mechanism for conducting a search strongly counsels against including any search protocol in a warrant.”); Kerr,

Ex Ante Regulation, supra note 21, at 1281–84.

193

See Kerr, Ex Ante Regulation, supra note 21, at 1278–90. These drawbacks, in his view, outweigh the

benefits of addressing the current legal uncertainty. Id.

194

United States v. Carey, 172 F.3d 1268, 1274–76 (10th Cir. 1999); see also United States v. Turner, 169

F.3d 84, 88 (1st Cir. 1999) (suppressing evidence of child pornography that officers found by opening JPEG

files on a computer in a home they were searching for physical evidence of assault).

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explanation of how the government intends to conduct the search so that the

Court may conclude that the government is making a genuine effort to limit itself

to a particularized search.”

195

In other words, the issuing court is not imposing

its own limits so much as ensuring that the government has a plan to impose

constraints on itself.

Objections based on magistrates’ ability to determine in advance what type

of search is necessary are similarly misplaced. One version of this objection is

simply based on magistrates’ (and prosecutors’, for that matter) lack of a crystal

ball; it is impossible to predict in advance what steps investigators will need to

take to perform an effective search. But again, ex ante limits are neither finite

nor set in stone. Magistrates’ demands have simply been that the government,

as part of its warrant application, explain its search plans—how it intends to find

responsive information, and what it intends to do with information it comes

across that falls outside the scope of the warrant.

196

The content of ex ante limits

thus comes not from prognostication but rather from a description of the

government’s plans.

Opponents also question the magistrates’ ability to assess the government’s

search needs as a matter of institutional competence. They question, that is,

whether magistrates have sufficient expertise or knowledge to set out effective

rules to govern digital searches. Here again, this objection seems to misconstrue

the magistrates’ actual role. The government does not simply submit an

application to the magistrate and rely upon him or her to construct from scratch

a set of rules. Rather—as with the FISA Court—the government’s application

itself contains proposed limits.

197

It is up to the government to determine how it

will go about its search, so long as it can articulate some constraints on its

authority.

198

And as several magistrates have stressed, the government need not

195

Apple iPhone, 31 F. Supp. 3d 159, 167–68 (D.D.C. 2014) (“[T]his Court is not requiring a search

protocol so that it may specify how the warrant is to be executed. Instead, the protocol will explain to the Court

how the government intends to determine where it will search.”); see also Cellular Tels., No. 14-MJ-8017-DJW,

2014 WL 7793690, at *10 (D. Kan. Dec. 30, 2014); In re the Search of ODYS LOOX Plus Tablet, Serial No.

4707213703415, in Custody of U.S. Postal Inspection Serv., 1400 N.Y. Ave. NW, Wash., D.C., 28 F. Supp. 3d

40, 45 (D.D.C. 2014).

196

Three Hotmail Email Accounts, 2016 WL 1239916, at *2; id. at *20 (“The government is free to

determine the best procedure and techniques to use, so long as the government provides notice as to what those

procedures are.”); see also In re the Search of ODYS LOOX Plus Tablet, 28 F. Supp. 3d at 46 (noting that the

search protocol “need not be overly detailed—the Court is not asking for a list of search terms—but the overview

must provide” enough information to assure that court that it would not be authoring a general search).

197

See, e.g., Apple iPhone, 31 F. Supp. 3d at 168.

198

See In re the Search of Info. Associated with [redacted]@mac.com, 13 F. Supp. 3d 145, 153–54

(D.D.C. 2014) (describing magistrates’ frustration at government’s persistent failure to respond to repeated

requests that it include search limits in its application).

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be concerned that its applications will prove too technologically sophisticated

for magistrates to digest. Instead, “[t]he government should not be afraid to use

terms like ‘MD5 hash values,’ ‘metadata,’ ‘registry,’ ‘write blocking’ and ‘status

marker,’ nor should it shy away from explaining what kinds of third party

software are used and how that software is used to search for particular types of

data.”

199

In other words, magistrates are not holding themselves out as technical

experts. They are merely asserting the need to be sure that the government’s own

experts have devised a sufficiently circumscribed protocol.

Finally, this Part turns to concerns that permitting magistrates to impose ex

ante rules on searches will prevent case law regarding what qualifies as

reasonable when it comes to digital searches from developing. Fourth

Amendment law frequently evolves as a result of ex post review of law

enforcement activities. That is to say, after government officials execute a search

or a seizure, that action is subject to judicial review when a criminal defendant

seeks to suppress the fruits of that search or seizure. Advocates for ex post review

are concerned that, if magistrate judges regularly impose ex ante rules for

searches, then higher courts’ review of the lawfulness of a search will be focused

on whether the government complied with the magistrate’s instructions, rather

than whether the search itself was reasonable.

200

There will therefore be no

vehicle driving the development of the law regarding what constitutes a

reasonable search or seizure.

There are both legal and policy-based responses to this argument. As a legal

matter, it is important to note that magistrates who have articulated their

justification for imposing ex ante limits have not identified them as a way to

ensure that searches are reasonable. Rather, they have imposed those limits to

satisfy the requirements of probable cause and particularity, without which they

cannot issue warrants.

201

When magistrate judges, for example, have insisted

that warrants include a particular search protocol, they have done so “not in

addition to the requirements of the Fourth Amendment, but in satisfaction of

199

Apple iPhone, 31 F. Supp. 3d at 168.

200

See Kerr, Ex Ante Regulation, supra note 21, at 1287–90.

201

E.g., Nextel Cellular, No. 14-MJ-8005-DJW, 2014 WL 2898262, at *10 (D. Kan. June 26, 2014)

(rejecting application for warrant allowing unlimited search of cell phone contents as authorizing seizure of data

for which government lacks probable cause and failing to satisfy the Fourth Amendment’s particularity

requirement); In re Applications for Search Warrants for Info. Associated with Target Email Accounts/Skype

Accounts, Nos. 13-MJ-8163-JPO, 13-MJ-8164-DJW, 13-MJ-8165-DJW, 13-MJ-8166-JPO, 13-MJ-8167-DJW,

2013 WL 4647554, at *3, *8 (D. Kan. Aug. 27, 2013) (rejecting warrant application for not describing the data

to be seized in a sufficiently particularized fashion); Ohm, supra note 18, at 10 (recognizing that “magistrate

judge-imposed restrictions on search warrants protect against not only the failure of particularity but also the

manifest failure of probable cause”).

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them.”

202

If magistrates are correct that warrants for digital searches that lack

limitations do not satisfy the probable cause or particularity requirements, then

evidence uncovered by such searches risks being suppressed at trial for that

reason. A search executed on the basis of a warrant issued without probable

cause or sufficient particularity is almost always, by definition, unreasonable.

As a policy matter, Professor Kerr’s insistence on ex post review is curious

given his usual recognition of the need for flexibility. In other contexts, he

argues, for example, that because “the privacy implications of particular rules

can fluctuate as technology advances,” we need mechanisms that can “adapt to

technological change.”

203

For Kerr, that usually means a preference for

legislative action over judicial decision-making, because Congress is free to

experiment and make amendments,

204

while Fourth Amendment-based judicial

decisions enshrine in constitutional law approaches that may become dated.

205

But if flexibility is important, ex ante minimization rules outperform

legislatures as well as ex post judicial review. Indeed, the NSA has explicitly

objected to codifying minimization procedures on the grounds that “it can be

difficult to change a statute if the procedures need to be changed in order to meet

operational needs.”

206

Even if some investigative techniques pose threats to

privacy and therefore require minimization, there is no rule dictating what the

minimization procedures must look like. Therefore if a judge determines, for

example, that the current state of technology demands that investigators employ

a taint team to limit access to non-responsive information contained in a

suspect’s cell phone, that limit can be included in a judicial order authorizing the

search without necessarily imposing that same rule on all cell phone searches

going forward. If six months later, technology has evolved to mitigate the

202

Cellular Tels., No. 14-MJ-8017-DJW, 2014 WL 7793690, at *6 (D. Kan. Dec. 30, 2014); see also In

re the Search of Info. Associated with [redacted]@mac.com, 13 F. Supp. 3d at 152 (denying government’s

warrant application to seize all emails from an account because it has shown probable cause only for some of

the emails in that account).

203

See Kerr, The Fourth Amendment and New Technologies, supra note 3, at 871–75.

204

E.g., id. at 805–806. As Justice Alito pointed out, even if the best solution to privacy concerns arising

from dramatic technical change are legislative, neither Congress nor most states have enacted statutes regulating,

for example, the use of GPS tracking technology for law enforcement purposes. United States v. Jones, 565 U.S.

400, 429–30 (2012) (Alito, J., concurring). The same can be said for computer and cell phone searches and the

use of information contained in law enforcement databases. Others advocate for a more robust judicial role. See,

e.g., Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1752–53 (1995) (arguing that when

technological changes disrupt the law, the lower courts should wrestle with the difficult questions “to create a

body of legal material from which others may draw in considering these questions”).

205

Kerr, The Fourth Amendment and New Technologies, supra note 3, at 805–07, 858 (“[I]t is difficult for

judges to fashion lasting guidance when technologies are new and rapidly changing.”).

206

Banks, supra note 79, at 1664 (quoting NSA’s minimization procedures).

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privacy threat posed by cell phone searches, judges would be free to impose

minimization demands that take account of this development.

207

Establishing rules ex ante also benefits the investigators themselves.

Normally, uncertainty in Fourth Amendment jurisprudence is disfavored by law

enforcement because the absence of clear rules means government officials have

insufficient guidance regarding how they may lawfully carry out their duties.

208

Often this aversion to uncertainty produces a preference for bright-line

constitutional rules that make plain what conduct is acceptable.

209

Placing ex

ante rules within the warrant itself means that even in the face of uncertainty

regarding the constitutional requirements for digital searches, law enforcement

will know at the outset what is permissible in the execution of any given warrant.

Of course, a court might subsequently disagree that the minimization procedures

laid down in a warrant actually were adequate to meet Fourth Amendment

requirements. However, this is likely to be a rare occurrence.

210

Investigators

following ex ante rules can therefore execute their search confident in their

future ability to use its fruits as evidence at trial, whereas investigators without

such guidelines must speculate whether the trial judge will allow the evidence

to be introduced. Minimization therefore mitigates the usual concern about the

absence of bright-line rules to guide law enforcement action when the applicable

law is uncertain.

There are two additional advantages to encouraging magistrates to use ex

ante minimization rather than relying on ex post judicial review. The first flows

from that fact that so many defendants challenging digital searches are charged

with possession of child pornography. Individuals whose digital devices contain

such images do not create a sympathetic context in which to consider the

propriety of a search. Judges are likely—consciously or unconsciously—to seek

to validate arguably problematic searches because of what they uncover,

potentially skewing the resulting doctrine in the government’s favor.

211

While

207

See United States v. Hill, 459 F.3d 966, 979 (9th Cir. 2006).

208

Kerr, The Fourth Amendment and New Technologies, supra note 3, at 884 (“[I]n the criminal context

rule-uncertainty is a liability.”).

209

E.g., O’Connor v. Ortega, 480 U.S. 709, 730 (Scalia, J., concurring) (noting that the Supreme Court

“repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case

definition of Fourth Amendment standards to be applied in differing factual circumstances.”); White v. United

States, 454 U.S. 924, 927 (1981) (White, J., dissenting) (dissenting from denial of certiorari because of

“uncertainty involv[ing] a fundamental aspect of law enforcement operations” and because “clarification of the

boundaries of legitimate police activity under the Constitution is ultimately this Court’s responsibility”).

210

See Kerr, Ex Ante Regulation, supra note 21, at 1285–86 (recognizing that evidence within the scope

of a warrant is hard to suppress unless the warrant is flagrantly disregarded).

211

See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 802 (1994).

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inadvertently rooting out someone with child pornography is not necessarily a

bad thing, the next time that same search technique is used, it might be on the

digital storage of someone completely innocent.

Second, ex ante minimization requirements will prevent the government

from benefiting from clear constitutional violations due to the good-faith

exception to the exclusionary rule.

212

The good-faith exception says that the

exclusionary rule should not bar the use of evidence obtained pursuant to

searches executed in reasonable reliance on a warrant that is ultimately found to

be invalid.

213

It may be the case that post hoc review determines that some

warrants issued without ex ante instructions in them are invalid—because they

lack sufficient probable cause or particularity, or because the search they

authorized was otherwise unreasonable. Unless the warrant’s deficiencies were

relatively clear to the executing officers at the time the search was conducted,

however, the government will face no penalty for having invaded a defendant’s

Fourth Amendment rights. Ex ante limits have the benefit of preventing

constitutional violations before they ever take place.

214

Minimization provides the best of all worlds: it ensures privacy protections

in each search, preserves flexibility while simultaneously offering sufficient

guidance for law enforcement, and provides judges the freedom to experiment

and evolve as both technology and investigative techniques develop.

215

Ultimately, if the Supreme Court or Congress determines that rules for these

searches should be codified more permanently, judges’ use of varying forms of

minimization and their relative effectiveness also will provide appellate judges

and policymakers valuable information regarding which tools are most

effective.

216

C. Magistrate Judges’ Authority to Require Minimization Procedures

The potential advantages of ex ante regulation can only be exploited if

judges and magistrates actually have the authority to include minimization rules

212

In United States v. Ganias, the full Second Circuit applied the good faith exception to the warrant clause

for a search, 824 F.3d 199, 225–26 (2d Cir. 2016) (en banc), reversing the panel’s opinion, which held that the

search was “a widespread seizure of files beyond the scope of the warrant—conduct that resembled an

impermissible general search.” United States v. Ganias, 755 F.3d 125, 140 (2d Cir. 2014), rev’d en banc on

other grounds, 824 F.3d 199 (2d Cir. 2016).

213

United States v. Leon, 468 U.S. 897, 920–21 (1984).

214

See Cellular Tels., No. 14-MJ-8017-DJW, 2014 WL 7793690, at *10 (D. Kan. Dec. 30, 2014) (“While

ex post remedies are aimed at mitigating harm resulting from an unconstitutional search and seizure, ex ante

restrictions help ensure that no violation of an individual’s Fourth Amendment rights takes place at all.”).

215

See supra Section II.B.

216

See Lessig, supra note 204, at 1752–53.

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in search warrants. Again, Professor Kerr is skeptical, arguing that the

magistrate’s role in crafting warrants is “surprisingly narrow” and does not

include the kind of ex ante rulemaking authority contemplated here.

217

This

contention rests on the language of the federal search warrant statute, which is

mirrored by many states, as well as the doctrine emerging from several judicial

opinions.

218

As Professor Ohm effectively refutes Kerr’s doctrinal argument,

this Article need not repeat his analysis in detail here.

219

Having examined the

sources on which Kerr relies, however, he concludes that while it is true that the

Supreme Court has never required ex ante limits, neither has it forbidden

them.

220

As for the textual argument, Kerr opines that Rule 41’s requirement “that

judges must issue warrants when investigators” establish probable cause means

that judges have no “authority to condition issuance of a warrant on its

execution.”

221

To be sure, Rule 41 does include that compulsory language. As

an initial matter, this argument only has force if law enforcement’s showing of

probable cause is valid in the absence of ex ante instructions.

222

Even if there is

no question as to the sufficiency of the probable cause showing, however,

nothing in the rule imposes any restrictions on including content in the warrant

above and beyond the mandatory elements.

223

At the same time, Rule 41 does

specify that warrants for electronically stored information are assumed to

authorize “a later review of the media or information consistent with the

warrant.”

224

Rule 41’s requirement that a later review of electronic media be

“consistent with the warrant” arguably contemplates a warrant that not only

217

See Kerr, Ex Ante Regulation, supra note 21, at 1261.

218

United States v. Grubbs, 547 U.S. 90, 97–98 (2006) (anticipatory warrants need not include a particular

description of the triggering condition to be valid); Lo-Ji Sales v. New York, 442 U.S. 319, 328 (1979) (holding

that the magistrate’s participation in the execution of the warrant violated the Fourth Amendment, and arguably

construing magistrates’ roles narrowly); Dalia v. United States, 441 U.S. 238, 257 (1979) (holding that warrants

need not include a specification of the precise manner in which they are going to be executed).

219

See Ohm, supra note 18, at 2–11 (arguing that Kerr’s analysis errs, inter alia, in evaluating the use of

ex ante search limits under the Fourth Amendment’s reasonableness requirement rather than viewing such limits

as a means of satisfying the requirements of probable cause and particularity).

220

Id.; see also Ferguson, supra note 6.

221

Kerr, Ex Ante Regulation, supra note 21, at 1271 (emphasis added); FED. R. CRIM. P. 41(d)(1) (“After

receiving an affidavit or other information, a [judge] . . . must issue the warrant if there is probable cause to

search for and seize a person or property . . . .”).

222

See supra notes 201–202 (pointing out that some magistrates have included ex ante rules as a means

of satisfying probable cause requirements, because only by following those rules will law enforcement’s access

be limited to material for which they have probable cause).

223

FED. R. CRIM. P. 41(e)(2)(A) (listing as mandatory requirements that all warrants command law

enforcement to execute the warrant within two weeks, during the daytime, and return the warrant once it has

been executed).

224

FED. R. CRIM. P. 41(e)(2)(B) (emphasis added).

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2018] THE MAGISTRATES’ REVOLT 93

authorizes the search but also includes terms with which the government must

act consistently. There is nothing to say that these terms may not include specific

limitations on how the government executes the search.

Indeed, magistrates regularly include such limitations outside the digital

context,

225

and magistrate judges already are explicitly authorized in Rule 41 to

specify a deadline by which the warrant must be executed, to dictate whether the

warrant may be executed at night, and to require any unlawful property

deprivation be remedied.

226

Additional minimization procedures are not a

significant departure from such measures.

Finally, recall the FISA Court’s treatment of the Internet metadata collection

program. The orders approving that program included exceedingly detailed,

rigorous minimization procedures.

227

Yet neither the Constitution nor the

relevant statute required minimization of that information at the time. This

implies that the judicial power includes some discretion regarding whether and

when the government should be subject to privacy-related constraints. In any

event, if judges currently do lack this power, Rule 41 could easily be amended

to include a provision mirroring FISA’s language specifically delegating to

issuing judges the power to devise, require, and oversee minimization

procedures.

ONCLUSION

Minimization procedures have always straddled the divide between statutory

and constitutional territory. They almost always derive from statutory demands,

but Congress uses them in legislation to allay concerns about the

constitutionality of over-broad collection. In other words, where they are

statutorily required, they are there because they are constitutionally necessary.

This tool, however, can also address the constitutional concerns raised by

inevitable over-broad collection in circumstances where they are not statutorily

required. Indeed, minimization presents an elegant solution to a challenge the

courts currently face. The FISA Court devised a remarkable variety of

minimization procedures to meet privacy concerns. In so doing, it showed how

helpful a safeguard minimization can be in situations where narrowly targeted

collection is technologically challenging. FISA judges also demonstrated the

benefit of having reviewing judges help to design the limits as part of their ex

225

See Ohm, supra note 18, at 4 (“Outside the computer context, magistrate judges regularly impose ex

ante restrictions on search warrants in order to ensure probable cause and particularity.” (italics added)).

226

FED. R. CRIM. P. 41(e), (g).

227

See supra Section II.B.2.d.

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ante oversight of searches and seizures. Judges facing the analogous challenge

of crafting warrants to search digital storage devices cleverly recognized that the

tool could address their concerns as well. Rather than accusing magistrates of

revolting, we should be praising their foresight in importing an existing legal

mechanism to protect individual privacy while also enabling effective criminal

investigations.