March 21, 2018 – The Seventh Circuit issued an opinion today affirming the district
court’s dismissal of a putative class action filed by the John K. MacIver Institute for
Public Policy (“MacIver”) against the prosecutors in John Doe II. In the lawsuit,
MacIver asserts that the prosecutors violated the Stored Communications Act (“SCA”),
18 U.S.C. § 2703, by executing secretive search warrants for electronic communications
in the course of a John Doe proceeding. Congress enacted the SCA to provide procedural
protections that, had they been followed, would have prevented precisely the kind of
prosecutorial abuses that ultimately occurred in John Doe II.
The Seventh Circuit’s decision erodes those protections under the SCA. Contrary to the
holding today, we believe that language in the SCA requiring warrants to issue from a
“court” means that warrants must issue from a “court,” which a John Doe proceeding is
not. We are also troubled by the Court’s application of the good-faith defense to allow
prosecutors to ignore federal law (despite their actual knowledge of it) so long as they
comply with state law regarding issuance of warrants. We also believe that the Court
should not read qualified immunity into a Congressional act that does not provide for it.
We are disappointed with the decision and are assessing potential avenues to address