Author(s)
Orin Kerr
Source
Harvard Law Review, Vol. 119, pp.531-585, 2005
Summary
This paper looks at how courts applying existing rules protecting privacy to digital and computer evidence.
Policy Relevance
Computer searches are very different from traditional searches; courts must try to adapt the rules to protect important rights without making police work impracticable.
Main Points
- The Fourth Amendment to the United States Constitution protects privacy by requiring police to get a warrant to search for evidence. These ground rules were designed for searches of homes, cars, and other spaces. Usually police enter and then leave, taking with them only a few items.
- Computer searches are different. The search is electronic, and usually occurs on government property, where seized computers are stored. It can involve vast amounts of information.
- Some courts have compared computer searches to opening a container like a box.
- It makes sense for courts to consider a “search” to happen when information is shown to a human being (e.g. on a monitor). Police should need a warrant to do this.
- If investigators copy all of someone’s computer data, making a “bitstream copy,” this is also a “search” or “seizure” because the police are interfering with the owner’s property. It would be troubling to allow police to do this without oversight.
- The “plain view” rule is that police can seize evidence spotted during a search if it is obvious. But applying this rule to computer evidence can erode our rights, because file search technology makes vast amounts of private data “obvious,” inviting “dragnet” searches.
- Finding a new rule to limit dragnet searches is hard. The police cannot predict what they will find or how they will find it when they scan someone’s computers, so insisting that they describe exactly what they are going to do up front is often not practicable.
