Author(s)
Orin Kerr
Source
Mississippi Law Journal, Vol. 75, pp.85-135, 2005
Summary
This paper describes problems with applying existing rules of evidence to digital and computer evidence.
Policy Relevance
To be fair and effective, the rules of evidence setting out how investigators should obtain and use warrants in searching for computer-related evidence should be updated.
Main Points
- Traditional searches are a one-step process; the police get a warrant, go to a physical address, search it, and seize the property listed in the warrant.
- Searches for evidence stored on computers are a two-step process; the police get a warrant, go to a physical address, search it, seize the computer equipment, and later have forensics experts electronically search the computers for information related to crime.
- Courts struggle to fit computer searches into the old rules for warrants:
- Is the property to be seized the computer, or the data stored on it?
- Is the place to be searched the physical address where the computers are kept, the place where the police are when they scan the computers, or somewhere else?
- Must the electronic search be carried out within the ten day time limit that appliers to physical searches? Most courts say no, but allowing the police to keep someone’s computers indefinitely is not fair or necessary.
- Rule 41 of the Federal Rules of Evidence should be updated:
- The warrant should describe both the physical place to be searched and the electronic search.
- Electronic searches for information should be carried out within 30 days, plenty of time for the police to copy all the data and return the computers. The ten day limit is not reasonable because computer forensics departments are backed up.
