BLOG BULLETS:

• A recent NACDL report provides a good case law resource and some good arguments for various limitations on computer searches.
• Remember to think about arguing for both the enforcement of any search protocols or other limitations included in the warrant and the use of reasonable search protocols in execution of the warrant even if the warrant doesn’t expressly include them.
• Remember also the recognition in the Ninth Circuit case of United States v. Hill, 459 F.3d 966 (9th Cir. 2006) that “judicial decisions regarding the application of the Fourth Amendment to computer-related searches may be of limited longevity [because] [t]echnology is rapidly evolving.”

NOW THE BLOG:

As many readers know, I’ve put up a number of posts on computer searches in the past. (Too many to list here, but you can find them by doing a word search for “computer” in the search box under the links at the right.) I recently got an e-mail that brought to my attention the NACDL report linked here, entitled, “What’s Old Is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches (Pre-Search Instructions and Post-Search Reasonableness).” It both discusses the current state of the law and different approaches to computer searches and makes recommendations for potential legislative action to protect digital privacy and limit computer search warrants.

In discussing the current state of the law, the report also summarizes different approaches taken by different courts and collects some of the case law out there – including some state cases and unpublished district court opinions in addition to the published federal cases – so it can be used not just for legislative or policy advocacy, but also as a case law resource. One of the opinions the report particularly emphasizes, which I thought I’d remind people of, is Judge Kozinski’s concurring opinion in United States v. Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir. 2010) (en banc). That opinion strongly advocates the use – and presumably enforcement in suppression hearings – of five pre-search guidelines to be included in computer search warrants.

1. Government waiver of reliance on the plain view doctrine.

2. Segregation and redaction of electronic data not within the warrant’s scope by either an independent third party or specialized computer personnel who provide investigators with only the information within the warrant’s scope.

3. A requirement that the actual risk of destruction of information be disclosed, not just generalized concerns.

4. A search protocol designed to uncover only the information for which there is probable cause.

5. A requirement that any data not covered by the warrant either be returned to the subject of the search, if it can be lawfully possessed, or, if it cannot be lawfully possessed, destroyed.

While we can’t seek such pre-search protocols ourselves, since warrants are obtained without our input, we can enforce any conditions that the magistrate or judge who issued the warrant chose to include. See, e.g., United States v. Payton, 573 F.3d 859, 864 (9th Cir. 2009). See also one of my prior posts – “Getting Braver in a Brave New World: Computer Searches Part 2” in the July 2012 link at the right – on one protocol requiring an attempt to search on-site that’s included in many Central District of California warrants.

The NACDL report also notes there should still be post-search review of the reasonableness of a computer search as well. As one example, consider arguing that an agent’s decision not to use a protocol that would reveal the targeted information and preserve the privacy of other information makes the search unreasonably broad, as suggested in another of my prior posts. (See “The Brave New Fourth Amendment World of Computer Searches” in the July 2012 link at the right.) And in considering prior case law, always keep in mind the comments of the Ninth Circuit in United States v. Hill, 459 F.3d 966 (9th Cir. 2006) – also discussed in my prior post – that “judicial decisions regarding the application of the Fourth Amendment to computer-related searches may be of limited longevity [because] [t]echnology is rapidly evolving.”
Id. at 979. Search limitations and/or protocols that may not have been feasible or realistic several years ago may have become so now.