Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"
Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"
I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.
The Brave New Fourth Amendment World of Computer Searches
- Computer searches are a brave new world where the courts and law enforcement are still trying to figure it out.
- The courts have given leeway for computer searches due to their complexity, but recognized that may change as technology improves and changes.
- Check for use of a search protocol reasonably aimed at finding what the target of the search is; a broad, general search of everything in the computer is subject to challenge.
NOW THE BLOG:
In my last post, I talked about discovery in the brave new world of computers. Today, I want to move further into that brave new world and talk about the Fourth Amendment and motions to suppress in that brave new world. It’s a fertile ground for Fourth Amendment litigation – and a dangerous area for our Fourth Amendment rights – because both the courts and the authorities – even those authorities who are acting in good faith – are still trying to figure out how to apply the Fourth Amendment in this brave new world. It’s far too complicated for me to address everything in a blog post, but there’s a number of very thoughtful law review articles out there if you want real depth. Let me start by referring you to just some of those articles; they include Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75 (1994); Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279 (2005); David S. Ziff, Fourth Amendment Limitations on the Execution of Computer Searches Conducted Pursuant to a Warrant, 105 Colum. L. Rev. 841 (2005); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005); Jonathan Zittrain, Searches and Seizures in a Networked World, 119 Harv. L. Rev. Forum 83 (2006) (replying to foregoing Kerr article). And for another source of suggested limitations and required procedures – one you can throw back in the government’s face as created by its own people – go to the Department of Justice’s own manual on computer searches: U.S. Dept. of Justice, Criminal Division, Computer Crime and Intellectual Property Section, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (3d ed. 2009), available by clicking here.
The purpose of this post – and the next one or two – is more limited than the extensive intellectual discussions in the foregoing materials. What I’d like to do is throw out some ideas as fodder for further thought, creative litigation, and thoughtful consideration of what our society needs to do to protect the Fourth Amendment rights of all of us in this brave new world. Some of these ideas are already explored and accepted or rejected in existing opinions, some of them haven’t been fully explored or litigated, and some of them may be ripe for further review or reconsideration. In the latter vein, I offer the thoughts of the Ninth Circuit in one of my cases in this area – United States v. Hill, 459 F.3d 966 (9th Cir. 2006). The court ended its opinion in that case with the following thought:
We realize that judicial decisions regarding the application of the Fourth Amendment to computer-related searches may be of limited longevity. Technology is rapidly evolving and the concept of what is reasonable for Fourth Amendment purposes will likewise have to evolve. See Kyllo v. United States, 533 U.S. 27, 33-34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) ("It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."); cf. id. at 41, 51, 121 S. Ct. 2038 (Stevens, J., dissenting) (expressing concern with "the supposedly ‘bright-line rule’ the Court has created in response to its concerns about future technological developments" as it "is unnecessary, unwise, and inconsistent with the Fourth Amendment" and commenting that "[i]t would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues [of technology] rather than to shackle them with prematurely devised constitutional constraints"). New technology may become readily accessible, for example, to enable more efficient or pinpointed searches of computer data, or to facilitate onsite searches. If so, we may be called upon to reexamine the technological rationales that underpin our Fourth Amendment jurisprudence in this technology-sensitive area of the law.
Hill, 459 F.3d at 979. See also Bob Dylan, The Times They are a-Changin’ (1964).
The last comments in this quote lead to two of the issues that have been litigated in the computer search context – and were specifically litigated in the Hill case. The one I’m going to address in this post is the question referenced in the quote above of "more efficient or pinpointed searches." The court in Hill held that there didn’t need to be a specific "search protocol" (i.e., a procedure for how and to what extent the computer is to be searched by the forensic examiner) set forth by the warrant to require targeted searches or otherwise limit the way in which the computer was searched. See id., 459 F.3d at 977-78. See also United States v. Adjani, 452 F.3d 1140, 1149-50 (9th Cir. 2006) (rejecting requirement of "pinpointed computer search" aimed at certain relevant e-mail addresses because "restricting the search to an email program or to specific search terms, would likely have failed to cast a sufficiently wide net to capture the evidence sought"). But the Hill opinion did leave open the need for limitations in the way the search was actually conducted, by, first, noting that "we look favorably upon the inclusion of a search protocol [even though] its absence is not fatal," id., 459 F.3d at 978, and pointing out that "even though a warrant authorizing a computer search might not contain a search protocol restricting the search to certain programs or file names, the officer is always ‘limited by the longstanding principle that a duly issued warrant, even one with a thorough affidavit, may not be used to engage in a general, exploratory search,’" id. (quoting Adjani, 452 F.3d at 1150).
So think about whether the expert who conducted the search in your case failed to do this. Targeted, limited searches are possible – by, for example, using various "key words," identifying and focusing on relevant types of files such as text files or graphics files, or examining files limited to some relevant time period or other characteristic that limits which computer files are viewed during the search. This is recognized by at least one district court opinion, see In the Matter of the Search of 3817 W. West End, First Floor Chicago, Illinois 60621, 321 F. Supp. 2d 953, 956, 959 (N.D. Ill. 2004); by at least one of the law review articles above, see the Winick article at 108; and was recognized by Ninth Circuit Chief Judge Kozinski in his concurring opinion in United States v. Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir. 2010) (en banc), see id. at 1179. Judge Kozinski’s opinion notes the existence of "sophisticated hashing tools at [the government’s] disposal that allow the identification of well-known illegal files (such as child pornography) without actually opening the files themselves," and one wonders if this is an example of a technological development that wasn’t so available or developed when the Winick article and Illinois district court opinion were written. If so, they illustrate the Hill opinion’s recognition that the rules might change.
Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, Bednarski & Litt, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane, Bednarski & Litt, Click Here.