Posted by Orin Kerr:
Search Warrants in an Era of Digital Evidence:
This Thursday I will be presenting a [1]new paper at the [2]University
of Mississippi Law School's annual Fourth Amendment symposium. This
year's symposium is on searching and seizing computers, a topic that I
have spent a lot of time thinking (and writing) about in the last few
years. My paper is entitled "Search Warrants in an Era of Digital
Evidence," and I have just posted a draft of it online that [3]you can
access here. Here is the abstract of the article:
This Article contends that the legal rules regulating the search
warrant process must be revised in light of the demands of digital
evidence collection. Existing rules are premised on the one-step
process of traditional searches and seizures: the police obtain a
warrant to enter the place to be searched and retrieve the property
named in the warrant. Computer technologies tend to bifurcate the
process into two steps: the police first execute a physical search
to seize computer hardware, and then later execute a second
electronic search to obtain the data from the seized computer
storage device. The failure of law to account for the two-stage
process of computer searches and seizures has caused a great deal
of doctrinal confusion, and makes it difficult (if not impossible)
for the law to regulate the warrant process effectively. The
Article concludes by offering a series of proposed amendments to
Rule 41 of the Federal Rules of Criminal Procedure to update the
warrant process for the era of digital evidence.
Unlike most law review articles, this piece is designed to encourage a
pretty specific practical reform. My hope is that the article will
inspire the Advisory Committee of the Federal Rules of Criminal
Procedure to propose an amendment to Rule 41, the rule governing
search warrants. The article makes two specific recommendations:
First, the law should require warrants seeking digital evidence to
state the property to be searched for at both the physical and the
electronic search stages. That is, the warrant should state the
physical evidence that the police plan to seize at the physical
stage, and the electronic evidence that the forensics analysts plan
to search for at the electronic stage. Second, warrant rules should
be amended to require that the electronic search step proceeds in a
timely fashion. Specifically, the law should require investigators
to mirror-image seized computers and return the equipment in a
reasonable period of time (such as 30 days) when the hardware is
merely a storage device for evidence. When the hardware is believed
to be contraband, a fruit, or instrumentality of crime,
investigators should be required to begin the forensics process
within a specific period of time (such as 60 days) to establish
whether that belief is correct. If it is not, the hardware should
be returned; if it is, the hardware can be retained.
The symposium itself will be webcast live on Thursday morning from
[4]this site; I believe I am scheduled to present my paper at 9:30
CST. The paper will be published in the Mississippi Law Journal's
annual Fourth Amendment symposium issue in the fall of 2005.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=665662
2.
http://www.olemiss.edu/depts/law_school/ruleoflaw/fourth_admendment/upcoming_conference.html
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=665662
4. http://130.74.83.76/administrator/
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