Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations

Privacy and Security

Article Snapshot

Author(s)

Orin Kerr

Source

Washington, DC: U.S. Department of Justice, July 2002. (Chinese edition published in 2006.)

Summary

This manual sets out the ground rules for evidence in crimes involving computers.

Policy Relevance

This area of law is changing rapidly and courts must resolve many unanswered questions about privacy and crime involving computers.

Main Points

  • The courts have ruled that police investigators should get a warrant before they seize or search a computer.
     
    • The rule does not apply to private sector searchers like a computer repairman.
       
    • People can consent to be searched without a warrant; sometimes parents and others who share his computers can also consent.
       
    • The subject can lose his privacy rights if he sends the information out to others.
 
  • Several exceptions allow searches without a warrant. Rules for searching government employees on government property are complicated.
 
  • The Privacy Protection Act limits when investigators can search a publishers (of newspapers for example) for evidence.
 
  • The courts have ruled that investigators’ warrants must describe what they are looking for with some detail, or with “particularity.”
 
  • The Electronic Communications Privacy Act sets out how investigators can access stored electronic records like email from Internet service providers (ISPs) and telephone. Sometimes communications companies can turn records over voluntarily. 
 
  • Government surveillance is covered by Electronic Communications Privacy Act and the Pen Register and Trap and Trace Devices statute.  

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