Now For Something Completely Different? The Uncertain Fourth Amendment Analysis Of Computer Searches
Few provisions in the Bill of Rights better illustrate the shortcomings of an “original intent” approach to Constitutional interpretation than does the Fourth Amendment’s guarantee of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Eighteenth-century words must be given new meaning in order to have currency in the twenty-first century. As record-keeping has shifted from storing a handful of parchment documents in a Colonial-era footlocker to housing millions of bytes of data on sleek laptops, Fourth Amendment jurisprudence has struggled to balance legitimate law enforcement needs with citizens’ modern expectations of privacy. No consensus has been achieved on updating the legal construct of the Fourth Amendment to encompass both old and new means of maintaining information.
The Supreme Court has yet to offer definitive computer-search guidance, and in the last year, the courts of appeal have exemplified dramatically different approaches to the problem of limiting the propensity of law enforcement authorities to rummage through the contents of computers in search of evidence in the same way they would skim documents in a file cabinet.
In United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010), involving the BALCO steroids investigation, agents had obtained a warrant to search computer records related to 10 named ballplayers in a specimen-collection laboratory. Based on Ninth Circuit precedent, the magistrate judge conditioned the warrant to require non-case agents with computer training to first conduct preliminary data reviews on-site to limit the universe of computer media which needed to be removed from the site for further examination, and to require those persons to conduct their off-site review so that non-pertinent data could be returned quickly. But these restrictions were ignored in executing the warrant, and the lead case agent broadly reviewed all computer files and directories at the laboratory, searching for the files affecting the 10 players. He reviewed the drug tests of hundreds of other ballplayers, and later used that information to secure additional search warrants in other districts within the Circuit, leading to the seizure of additional evidence involving many other ballplayers.
The government sought to justify on “plain view” grounds the broad review of records of ballplayers not named in the search warrant, arguing that the others’ test results were intermingled in computer directories with the results for the players identified in the warrant. The Ninth Circuit, sitting en banc, rejected the argument that agents could permissibly review entire hard drive directories thought to contain the narrower data eligible to be seized under the terms of the warrant, mocking the argument in a series of rhetorical questions: “Why stop at the list of all baseball players when you can seize the entire [directory in which they were found]? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been … Let’s take everything back to the lab, have a good look around and see what we might stumble upon.” Id. at 1170-71. While “over-seizing” evidence is an “inherent part of the electronic search process,” the court of appeals called for greater vigilance on the part of judicial officers in striking a balance between the needs of law enforcement and the Fourth Amendment rights of individuals. Id. at 1177. The court of appeals affirmed several district court orders compelling the return of all of the evidence improperly seized on the various warrants.
Not surprisingly, computer searches in the conservative-leaning Fourth Circuit are viewed through a more law enforcement-friendly prism. In United States v. Williams, 592 F.3d 511 (4th Cir. 2010), cert. den., 2010 WL 2504942 (Nov. 15, 2010), where the subject had sent threatening emails to a local church, police obtained a warrant to seize all computers and media in his residence which were “indicative” of the state offenses of harassment, through use of obscene and profane language, and making threats of injury. The police and FBI executed the warrant by removing all of his computers and media to an off-site location for review, where they found child pornography on a DVD. Williams moved unsuccessfully for the suppression of the child pornography evidence, arguing that the warrant did not authorize a search of each computer file in his possession, but only of those files related to the designated offenses; he also argued that “plain view” could not sustain the seizure, because then the exception would swallow the entire Fourth Amendment when it came to computer searches.
The Fourth Circuit had no difficulty in affirming denial of the defendant’s suppression motion. Even if the warrant did not authorize the seizure of child pornography, the “plain view” exception controlled. Id. at 521. The warrant “impliedly authorized officers to open each file on the computer and view its contents, at least cursorily” to determine if the file fell within the scope of the warrant; after all, the court noted, the designation or labeling of files on a computer can easily be manipulated to hide their contents. Id. at 522. Lest there be any doubt about the chasm between the views of the Ninth and Fourth Circuits, the latter concluded: “At bottom, we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents.” Id. at 523.
Between the two extremes is the view typified in the Tenth Circuit’s decision in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), cert. den., 130 S. Ct. 1028 (2009). Authorities in Burgess executed a search warrant for evidence of drug sales and seized a laptop and two hard drives from the defendant’s motor home. An agent searching for photos of drugs and drug proceeds on the computer media found child pornography during his preview of image files; he then ceased the preview and obtained a new warrant for child pornography files. Burgess moved unsuccessfully to suppress evidence of those images, and the Tenth Circuit affirmed the denial of his motion. The court held that it was “unrealistic” to expect a warrant to narrow the scope of a search by filename or extension, since names could be altered, and that keyword searches directed against an entire hard drive might miss evidence, and so the search process must be “dynamic.” Id. at 1093-94. Although attempting to structure the mechanics of the search in the warrant (as the Ninth Circuit now requires) is “folly,” id. at 1094, there are some functional limits on computer searches; the officer must first look in the most obvious places on the computer, starting with file structure, then look for suspicious file folders, and then look for files and types of files most likely to contain the objects of the search, using keyword searches. “But in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.” Ibid.
These contrasting approaches illustrate the degree to which confusion will reign until the Supreme Court speaks to the matter.