Posted by Orin Kerr:
Ninth Circuit Enacts* Miranda*-Like Code for Computer Search and Seizure:
http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251308337
The Ninth Circuit's new computer search and seizure decision in
[1]United States v. Comprehensive Drug Testing is a truly astonishing
decision. The majority opinion, by Judge Alex Kozinski, announces a
laundry list of brand-new rules, introduced with no citations to any
authority, that henceforth the government must follow when executing
warrants for digital information. I can't recall having read anything
quite like it, although it does bring to mind[2] Miranda v. Arizona.
Judge Kozinski helpfully sums up the new rules the Ninth Circuit
has announced as follows:
When the government wishes to obtain a warrant to examine a
computer hard drive or electronic storage medium in searching for
certain incriminating files, or when a search for evidence could
result in the seizure of a computer, see, e.g., United States v.
Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be
vigilant in observing the guidance we have set out throughout
our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reliance
upon the plain view doctrine in digital evidence cases. See p.
11876 supra.
2. Segregation and redaction must be either done by specialized
personnel or an independent third party. See pp. 11880-81 supra. If
the segregation is to be done by government computer personnel, it
must agree in the warrant application that the computer personnel
will not disclose to the
investigators any information other than that which is the target
of the warrant.
3. Warrants and subpoenas must disclose the actual risks of
destruction of information as well as prior efforts to seize that
information in other judicial fora. See pp. 11877-78, 11886-87
supra.
4. The government�s search protocol must be designed to uncover
only the information for which it has probable cause, and only that
information may be examined by the case agents. See pp. 11878,
11880-81 supra.
5. The government must destroy or, if the recipient may lawfully
possess it, return non-responsive data, keeping the issuing
magistrate informed about when it has done so and what it has kept.
See p. 11881-82 supra.
I should add that I think these rules are being announced as Fourth
Amendment rules, although at first blush that's not entirely clear:
The opinion is remarkably light on the sources of its authority.
Also, I should add that I'm not sure what most of Judge Kozinski's
new requirements actually mean To pick one example, what does it mean
to "waive plain view"? Is the idea that the government promises not to
rely on the Fourth Amendment's plain view doctrine to admit evidence
out of the scope of the warrant? I have never seen anything like that,
and I don't know if such a waiver is even enforceable.
More soon, as I delve through more of the opinion and get to the
concurring and dissenting opinions.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/08/26/05-10067eb.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436
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