Computers, Private Search, And The Fourth Amendment
Computer evidence has become increasingly important in both civil and criminal investigations. The FBI alone has over 200 full-time computer forensics examiners (O’Dorisio, 2017). The digital age has required the courts to take another look at the Fourth Amendment particularly as it relates to private search and computers. Because the slow pace of the law and the exponential growth and problems associated with the digital age problems have arisen for cases involving the Fourth Amendment, solutions are needed to define proper procedures for search of computers and other digital evidence. Remedies for search include framework analysis, ex ante restrictions, and minimization procedures.
The Fourth Amendment which initially applied to tangible items has been greatly extended due to changes in society, population, and now technology. “Applying the Fourth Amendment to cyberspace requires clear articulation of guidelines as to reasonableness in order to preserve privacy and minimize intrusiveness” (Katopis, 1995, p 195). The Supreme Court has the task of balancing law enforcement interests as well as individual privacy. But when those judges sitting on the Supreme Court change, so does the interpretation of the Fourth Amendment. Thomas goes on to say that of particular cause for alarm are third party consent searches of computers (2009). It appears that the courts and law enforcement officials have pushed aside the Fourth Amendment privacy with such searches. Some have argued that password protection should prevent such searches, but digital forensics analysis can bypass passwords deeming them virtually irrelevant. Police officers play ignorant by avoiding asking pertinent questions of third party consenters — actions totally unacceptable by Fourth Amendment standards.
Fourth Amendment decisions in the last 25 years have shifted the balance to favor warrantless and suspicionless searches for groups such as students, government officials, prisoner, probationers, and people in international airports, that should have decreased expectations of privacy. But computer users are not offered, nor should they be offered a lower standard of Fourth Amendment protection. With encryption comes the need for heightened privacy expectations. U. S. v. Ackerman and other similar caes reveal that courts are sometimes offering “controversial rationale in their findings that have far-reaching implications specifically regarding the viability of the private search doctrine as applied to computers”.
Things that make Fourth Amendment private search doctrine complex with respect to computers is storage capacity of computers, transference of data among devices in literally seconds, difficulty in locating and segregating responsive from nonresponsive date in a cursory search to name a few. Computers leave evidence on hard-drives, meta data and virtual memory which is more than just files visible to the user. Likewise, information like GPS tracking would never have been discovered in the search of someone’s home. Thus, there is a need for search guideline that won’t violate the Fourth Amendment.
Congress has deemed the courts the best suited to assess and monitor what is termed minimization as to be applied to the collection, retention, and dissemination of computer stored data. The basis for decisions regarding computer searches and Fourth Amendment private search doctrine comes from a need to balance the amount of information the government stands to gain from a search with the level of certainty regarding what they will find. Because private search extinguishes as individual’s expectation of privacy, the Fourth Amendment search doctrine becomes applicable only to governmental entities or their agents performing said searches.
Some courts reason that the search of a single file means the entire computer has been searched. Others ascribe to a file framework analysis contending that the opening of a file is a distinct search. With the file framework they seek to define the physical device by a file or data unit of measurement but just what that definition is remains an issue of contention. Other courts view ex ante rules as a means for specificity within the execution of warrants.
Ex ante restrictions include specifics on how the government would carry out their search — i. e. limits on length of seizure of hardware, steps of how the government would conduct the search, what the government would do with information obtained from the search that fell outside the scope of the warrant. Because law enforcement cannot know with precise certainty what they will find makes creating a warrant so specific quite difficult. While some courts are presently making use of ex ante restrictions in warrants for computer searches, others argue the severity of these restrictions are unlawful and place excessive limitations on law enforcement, and even that magistrates lack the expertise to oversee them. Magistrates are not computer experts but are burdened with the task of policing the police.
With respect to computer searches, warrantless searches are very limited — the vast majority of searches are executed by warrants except when public safety, evidence destruction, or the investigation is in danger of being compromised. Experts have now turned their focus to the FISA Court and its success with a process called minimization that seeks to balance the “individual’s actual subjective expectation of privacy by society’s objective determination of the reasonableness of Fourth Amendment protection”.
Minimization (Rule 41 Federal Rules of Criminal Procedures) offers a two-step process with respect to digital searches: 1) an initial overbroad seizure begins by seizing the entire computer rather than files, then 2) at a later time they subject the seized data to a later, more comprehensive review. In addition, it becomes then necessary to address limits such as how long the government can hold the seized evidence using Title III which is mainly implemented at the Intelligence level but has merit in computer searches in general. Moreover, the language of the warrant is so specific that it tells officers not only to limit data to probable cause but exactly how to separate relevant data from irrelevant data so that nothing is left to the discretion of the officer. Officers can achieve this by looking at internet protocol addresses, online account information, offline conduct, and staleness of the data. All of these procedures are universal to the structure of computer transmissions are noninvasive with respect to privacy.
The government has achieved such success in combating counterterrorism and counterintelligence with minimization procedures that criminal investigations should be able to do likewise. Key to the success is oversight — oversight over access restriction, reporting, search protocol all of which can change rapidly with a field that changes by the minute. The FISA Court goes as far to say “minimization procedures are effective, flexible tools to safeguard constitutional rights that are threatened by advances in technological capabilities”.
Still others want case law and ex-post review to continue to determine reasonableness with respect to the Fourth Amendments because they feel that the Fourth Amendment is better able to evolve that way. If there is no ex-post review then there will be no development in the law as to what constitutes reasonableness in cases involving computer searches. Preventing constitutional violations from the outset should not be viewed as a bad thing, however. Minimization procedures have shown to outperform both legislative and ex-post judicial review because they have greater flexibility and can be easily adapted to the everchanging field of technology.
Judges, legislators, and legal experts will not doubt to continue to wrestle with the ways to maintain the Fourth Amendment’s protection of privacy with respect to computer searches. Both technological and legal worlds are everchanging, however, at different paces and must, therefore, consider ways to combat intrusiveness into the lives of individuals and their computers. File framework analysis, minimization procedures and ex ante restrictions are what is available at the moment until some other means is discovered.
References
- Berman, E. (2018). Digital Searches, the Fourth Amendment, and the Magistrates’ Revolt. Emory Law Journal, (Issue 1), 49. Retrieved from http://search. ebscohost. com. libproxy. troy. edu/login. aspx?direct=true&db=edshol&AN=edshol. hein. journals. emlj68. 6&site=eds-live
- Katopis, C. J. (1995). Searching cyberspace: The fourth amendment and electronic mail. Temple Environmental Law Technology Journal, 14(2), 175-206.
- O’Dorisio, R. (2017). “You’ve Got Mail!” Decoding the Bits and Bytes of Fourth Amendment Computer Searches After Ackerman. Denver Law Review, 94(4), 651–680. Retrieved from http://search. ebscohost. com. libproxy. troy. edu/login. aspx?direct=true&db=a9h&AN=125049147&site=eds-live
- Office of Legal Education Executive Office for U. S. Attorneys (2015). Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations. https://www. justice. gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ssmanual2009. pdf
- Thomas, D. D. (2009). Dangerously sidestepping the fourth amendment: How courts are allowing third-party consent to bypass warrants for searching password-protected computer. Cleveland State Law Review, 57(2), 279-308.
