Posted by Orin Kerr:
Searches and Seizures In A Digital World:
My new paper, [1]Searches and Seizures In A Digital World, was
recently accepted for publication in the Harvard Law Review and is now
available as a draft in electronic form. Here is the abstract:
The new frontier of the Fourth Amendment is the search and
seizure of computer data. Created to regulate entering homes and
seizing physical evidence, the Fourth Amendment's prohibition on
unreasonable searches and seizures is now called on to regulate a
very different process: retrieval of digital evidence from
electronic storage devices. While obvious analogies exist between
searching computers and searching physical spaces, important
differences between them will force courts to rethink the basic
meaning of the Fourth Amendment's key concepts. What does it mean
to search computer data? When is computer data seized? When is a
computer search or seizure reasonable?
This article offers a normative framework for applying the Fourth
Amendment to searches of computer data. It begins by exploring the
basic differences between physical searches of physical property
and electronic searches of digital evidence. It then proposes an
exposure theory of Fourth Amendment searches: any exposure of data
to an output device such as a monitor should be a search of that
data, and only that data. The exposure approach is then matched
with a rule for computer seizures: while copying data should not be
deemed a seizure of that data, searches of copies should be treated
the same as searches of the original. In the final section, the
article proposes a rethinking of the plain view exception in
computer searches to reflect the new dynamic of digital evidence
investigations. The plain view exception should be narrowed or even
eliminated in digital evidence cases to ensure that digital
warrants that are narrow in theory do not devolve into general
warrants in practice. Tailoring the doctrine in light of the new
realities of computer investigations will protect the function of
existing Fourth Amendment rules in the new world of digital
evidence.
I welcome comments from all sources, but would be particularly
interested in thoughts from techies; the article is premised on the
factual differences between physical searches and the computer
forensics process, and I want to make sure that my description of the
tech side matches the real world.
You can download a copy [2]here; just scroll down and click on the
download button. Please direct comments to okerr law.gwu.edu.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=697541
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=697541
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