Computers, Privacy & the Constitution

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AlexUballezSecondPaper 3 - 28 Jul 2010 - Main.EbenMoglen
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Protecting Fourth Amendment Privacy Rights in Electronic Data.

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Post-search restrictions (exclusionary rule)

Exclusion can be a powerful defense against admitting electronic data found in plain view. However, 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.
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Which would be right, given the points with which you started the essay, correct?
 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

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 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 to add a filtering step between the search and the seizure 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).
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It would be helpful to begin by thinking a little about warrant execution in general. Once a warrant has been obtained, and the particularity requirements _for the warrant_ have been met, the practical scope of discretion in execution is very broad. The investigator empowered by the warrant may choose to serve it and execute it with great specificity, or she may decide, colloquially, to take the joint apart. Judicial control over execution might result from motions to exclude evidence uncovered by too-diligent searching, but exclusion is unlikely, to say the least, under such circumstances, and it is a peripheral control at best over the vast bulk of searching activity. Damages actions in the Bivens mode will not be successful either.

So this is an area in which the real limits are set by custom, and they are highly variable. Under present circumstances, imaging storage devices rapidly is easy, and physical seizure of hard drives, let alone whole computers, is arguably unnecessary. On the other hand, storage devices smaller than a thumbnail can contain more text than a small 20th century public library, so searching an office or apartment for a data file known to be there could certainly legitimately be said to involve stripping the place to the walls and carrying away everything heavier than a dust ball. The real practicalities of investigation evidently demand outcomes between these extremes. This implies both wide discretion for agencies applying limited resources to multiple investigations, and a concomitant breadth of possible abuse.

So the first question will be whether constitutional doctrine is a sensitive, or even useful, instrument in the management of these issues. Unless the courts are in the end to manage how police agencies actually perform IT searches, which is not going to be a problem for the US Court of Appeals for the Ninth Circuit, but for many less high-status judges with far less comfortable worklives, the real rules about whether all your client's computers are seized and remain seized for years, let alone about who does what to inspect which files, are going to be made by people who don't wear robes and never sat in legislatures.

"Plain view," if it has any application at all to this context, which you raise some substantial reasons to doubt, is again only about the need for a warrant, and plays no role in setting limits on the execution of a warrant once granted.

But remember that with a few minutes' work (at least if you use reasonable computer operating systems) you can render all of this pretty much irrelevant. The world is full of strong encryption for ordinary people to use, for reasons I know a little bit about, and it's trivial to store all your data all the time in encrypted form that makes seizing your computer hard drives or the thumb drive you keep in your left sock completely useless. Isn't that nice to reflect upon? It might even be a thing you'd want to do. Because if there are all these reasons to feel concerned about the increase of the power of the State to search, and the inadequacy of the Law to control, surely it's minimally relevant that individuals can readily possess the power necessary to do more than equalize.

 -- AlexanderUballez - 26 May 2010

Revision 3r3 - 28 Jul 2010 - 22:46:05 - EbenMoglen
Revision 2r2 - 27 May 2010 - 13:59:18 - AlexanderUballez
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