Agents of SHIELD Needs a Bow Tie Wearing Judge Facciola

SHIELD_ConstitutionI have enjoyed Agents of SHIELD immensely, but I have been troubled by the total failure to observe the Constitution.

This was evident when Skye was first arrested with a bag over her head, to the unlawful killing of the guards at the “Guest House,” to the large number of warrantless computer searches by hacking.

This culture of unlawfulness in the name of security will likely be a key theme in Captain America The Winter Soldier.

As a preliminary matter, I have had Reddit comments stating that the Constitution does not apply to SHIELD, because it “isn’t American,” but a “world council.”

First off: Wrong. SHIELD was an outgrowth of the “Strategic Scientific Reserve” (SSR) in the post World War 2 Era. Its origins are American, it operates in America and has bases in the United States.

Cap_Shield_Represent_7697Secondly, there is no way on Earth the United States would let a foreign power operate within the country, not following its laws, complete with military bases that conduct espionage on its citizens and perform arrests. The United States would not tolerate SHIELD as a foreign power occupying any part of the country committing acts of war.

Third, the Constitution is the Supreme Law of the Land. No law may conflict with it. Period. It protects everyone who is a born or naturalized US citizen and those within the United States.

Agents of SHIELD and the previews for The Winter Soldier have a theme that SHIELD operates like the NSA/CIA/FBI/DEA/INS/DOD with a God-complex armed with flying aircraft carriers that conduct law enforcement, espionage, and military operations within the United States.

That should upset anyone with a law degree in the Marvel Universe.

SHIELD apparently can also authorize the use of a nuclear weapon on a US city without Presidential authorization, as seen in the Avengers. I specifically remember from the history books that Senator Barry Goldwater lost the 1964 Presidential Election and got nuked with the Daisy ad after saying local military commanders should have discretionary use of tactical nuclear weapons.

AskBeforeNukingOne of the elements on Agents of SHIELD that has troubled me is the lack of any judicial involvement, or repercussions, for their actions. We are a nation of laws and the 4th Amendment is pretty clear about protecting us from illegal searches:

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.

Some Heroes Wear Bow Ties

facciola2In the real world, Magistrate Judge John Facciola played his own version of a super hero in an order denying a facially overbroad search warrant of electronic communications.

The Government has gotten into the practice of seeking the “entire universe of information tied to a particular account, even if it has established probable cause only for certain information.” In re Search of Info. Associated with @mac.com, 2014 U.S. Dist. LEXIS 35323, at *8 (D.D.C. Mar. 7, 2014).

The Government has been “asking” service providers in search warrant applications to produce ALL communications connected to an email account, regardless of whether or not they are relevant to the case. In re Search of Info., at *10.

In the present case, the search warrant application was for the investigation of kickbacks and conspiracy involving a defense contractor and sought a specific Apple email address.

The Court blasted drafting errors, noting that the Government used language that would confuse the producing party on what information it must determine to give to the government. In re Search of Info., at *7. The Application stated the provider to produce three months worth of email, yet the Government would only “seize” email relevant to the criminal investigation. In re Search of Info., at *14. As Judge Facciola stated, “This Court should not be placed in the position of compelling Apple to divine what the government actually seeks.” In re Search of Info., at *7-8.

The Court stated the Government’s application sought an Unconstitutional General Warrant. The 4th Amendment protects us from search not based on probable cause and searches should be as limited as possible. In re Search of Info., at *12. These beliefs date back to our Revolutionary War. Searches are not to be a Lewis and Clark expedition through someone’s email or social media accounts. As the Court explained:

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. It is thus imperative that the government “describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.”

In re Search of Info., at *12, citing United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).

The Court explained the Government’s application demonstrated it could describe the relevant items with specificity, yet the Government “has simply chosen not to by pretending that it is not actually “seizing” the information when Apple discloses it.”  In re Search of Info., at *14. As the Court explained by citing In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron.Alexis That Is Stored at Premises Controlled by Facebook, Inc., 13-MJ-742, 2013 U.S. Dist. LEXIS 185850, at *9-10 (D.D.C. Nov. 26, 2013):

By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to ‘seize’ everything that is given to it.”

In re Search of Info., at *14.

Judge Facciola denied the application and threw Captain America’s shield at the DOJ with a clear message: Search warrants that fail the Fourth Amendment will be denied. The Court had modified approximately 20 applications for search warrants between September to December 2013 to comply with the Fourth Amendment. No more. Comply or get denied. In re Search of Info., at *21-22.

Why Marvel Needs a Bow Tie Wearing Judge

Comic books and science fiction have a profound way of making social commentary. Perhaps that is the intent of seeing SHIELD conduct massive searches of electronic communications (as seen in the Incredible Hulk) and outright hacking is to get viewers to think about Constitutional rights.

GetAWarrant_LolaJudge Facciola did not write “Judge Smash!” in his In re Search of Info. Associated with @mac.com order, but it certainly must have felt like a helicarrier crashed into a building for the DOJ lawyers who have been filing applications for general warrants of electronic communications. Agents of SHIELD needs to have a judge send that kind of message.

Agents of SHIELD frequently conducts searches on people without a warrant. Add the arrests without Miranda Rights, torture, beatings of prisoners and murder, and there would extremely intense judicial involvement and Congressional hearings.

Josh_Constitution_SHIELDThe actions on Agents of SHIELD would cause gavels to fly like Mjölnir for the civil rights violations. It would be good to see a bow tie wearing judge call out SHIELD for its ignoring the Constitution in the name of security. The ends do not justify the means when it comes to the Bill of Rights.

I personally would like SHIELD to not have the same moral standing as the Punisher when it comes to upholding the Constitution. I think there is a good chance these issues will come up in Winter Soldier and impact future storytelling on Agents of SHIELD.

Will we see attorneys and judges in the future? Unknown, but it would send the right message that those who take an oath to upload the Constitution should also follow it.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.