Protecting Fourth Amendment Privacy Rights in Electronic Data.

The Plain View Doctrine and Electronic Data.

In physical spaces, the plain view doctrine can balance personal privacy rights against society’s interest in effective law enforcement. This is because physical evidence takes up space. We automatically compute physical constraints (a Mossberg must be physically moved from the scene of the crime to the hiding spot) and the scale of physical locations suggest the number of objects and where they may be hidden (four shotguns cannot be stored in a wallet, tea kettle, or cut-out book). These physical constraints protect people from pretextual searches, while not punishing law enforcement for doing a good job (or rewarding criminals for the same). (“Police with a warrant for a rifle may search only places where rifles might be,” Coolidge v. New Hampshire, 403 U.S. 443, 517 (1971)).

Electronic data, however, has no such constraints. Documents can be hidden in pictures, files can be renamed (‘tax.evasion.2010.xls’ becomes ‘profilepic.jpg’), and seemingly endless memory can contain an almost unlimited amount of information (there is only one shotgun, but millions of files could contain tax evasion information). Thus, a warrant to search a hard drive for child pornography would place every single file on the drive in plain view of the investigating officer.

If physical searches were no longer bound by the reasonable expectations of physical space, we would call them general searches. Without a parallel restriction in digital investigations, the plain view doctrine negates the particularity requirement of the Fourth Amendment. An officer with a warrant for a particular piece of evidence may use that authorization as a general warrant to search the rest of the drive.

When this intrusion is balanced against the amount of information now stored on most personal computers and the ease of planting contraband (both by law enforcement and third parties), these general searches should not be considered reasonable under the Fourth Amendment.

Mitigating General Warrants for Electronic Data.

Pre-search descriptions ('how' restrictions)

Requiring the investigator to outline their search methodology, as described for physical files in US v. Tamura, 694 F.2d 591 (9th Cir., 1982), “maintain[s] the privacy of materials that are intermingled with sizeable materials . . . to avoid turning a limited search for particular information into a general search of office file systems and computer databases.” US v. Comprehensive Drug Testing, 579 F.3d 989, 998 (9th Cir., 2009). Unfortunately, requiring investigators to explain their process before the search of electronic data is impossible. Given unfamiliarity with the drive and possible countermeasures, the only possible time for an agent to request additional judicial authorization would be when she comes across ‘illegalkiddieporn.jpg,’ at which point the new warrant is merely a formality and the harm has already been done.

Post-search restrictions (exclusionary rule)

Exclusion has the potential to be a powerful weapon against data found in plain view. However the difficulty in defining any files on a computer as not in plain view would simply result in either allowing anything found in the search, or excluding everything not in the warrant. The latter option essentially abandons the plain view doctrine entirely with respect to electronic data.

Excluding digital evidence not covered by the warrant would solve the harm of general electronic warrants, but we still have to establish that the investigator/prosecution committed an illegal act or infringed on the rights of the person searched in order to invoke the protection.

Unreasonable seizure

Fourth Amendment protections against unreasonable search were founded upon and sustained by the limitations of our physical world. We do not yet have analogous limitations in the electronic world so that privacy in digital searches is adequately protected. The same is true for seizure, except we do have a digital equivalent of physical seizure.

Physical seizures involve the deprivation of physical control over the object seized. This conception of seizure, like that of searches, relies on the physical world to set boundaries that protect privacy. Where unreasonable physical seizures violate rights in property, we can extrapolate a parallel protection against unreasonable seizures of electronic data that maps similar privacy protections onto this form of property the ratifiers of our Constitution did not have in mind.

For seizures of a physical drive, we can use the traditional calculus to apply privacy protections to the seizure. The threat that a warrant or exigency will be enlarged into “the equivalent of a general warrant to rummage and seize at will” is averted by a requirement that “ seizing the item must entail no significant additional invasion of privacy.” Texas v. Brown, 460 US 730, 748 (Stevens concurring)(emphasis added)(1983). When the warrant is seeking information found on a persons main drive (where it can be expected they keep many of their personal files) and the plain view doctrine would open even file to search, the seizure itself triggers privacy concerns. By failing to isolate the relevant information off of the drive, the seizure constitutes a significant additional invasion of privacy.

The copying of information from a person’s hard drive implicates unique privacy concerns. The copying itself, while not amounting to an infringement on property rights, in effect ‘takes’ a person’s identity. In the same way that copyright creates a right in some digital media that is violated when the file is copied and distributed, seizure of such a large quantity of very personal data may constitute an independent violation of both property rights and privacy when the government becomes partial owner of unrelated information.

Conclusion.

This analysis suggests a constitutional right against unreasonable seizure of electronic data. This constitutional right would justify an exclusion-based protection of digital evidence in plain view, as argued above, as well as the steps taken by the Ninth Circuit in US v. Comprehensive Drug Testing, 579 F.3d 989 (where prosecutors must waive the ‘plain view’ doctrine in cases of digital evidence, and outsource the actual search to other parties that will extract relevant evidence, destroy contraband not covered by the warrant, and return the remainder to the owner) (9th Cir., 2009).

-- AlexanderUballez - 26 May 2010