BITS, BYTES, AND CONSTITUTIONAL RIGHTS: NAVIGATING DIGITAL DATA AND THE FOURTH AMENDMENT.

• Author: Moccia, Stephen

Introduction 163 I. Stavros Ganias, the Fourth Amendment, and Computer Searches and Seizures 168 A. The McCarthy and Ganias Investigations and Prosecutions 168 B. The Legal Standards for Digital Searches and Seizures 172 1. General Fourth Amendment Principles 172 2. Searching Electronic Evidence 176 II. The "Digital Misunderstanding" and the Impracticality of Ganias 182 A. Digital Data Only Seem Like Physical Files but Are, in Fact, Distinct 183 B. The Shortcomings of the Ganias Opinions 188 III. Ganias Simplified if Viewed from a Different Perspective 198 A. Better, but Less Obvious, Analogies that Support the Authority To Retain and Search 199 1. Seizure of a Car 201 2. Evidence Found in a Couch Cushion 203 3. A Bloody Sweatshirt 204 B. No Fourth Amendment Rights Were Actually Violated in Ganias 205 Conclusion 209 Appendix: A Basic Explanation of Computer Data Storage 211 INTRODUCTION

The invention of computers, like all modern technologies, was revolutionizing. (1) Modern storage mechanisms can contain the equivalent of sixteen billion thick books. (2) One 2017 study found that eighty-nine percent of consumers check their smartphones within an hour of waking up and, on average, look at their phones approximately forty-seven times each day (a statistic that rises to eighty-six times a day for eighteen to twenty-four year olds). (3) Forbes reports that, by 2020, about 1.7 megabytes of new information will be created every second for every person, with total accumulated digital data growing to around forty-four zettabytes, or forty-four trillion gigabytes. (4) By that same year, the "Internet of Things" (5) will have grown to over fifty billion connected devices worldwide. (6) Thus, digital storage devices are, more and more, the spaces in which people operate--replacing the hard-copy physical world of the past. Yet, the innovators behind such creations are aware of basic human nature and have historically employed a style of design in which digital elements resemble real-world objects that anyone would recognize. (7) What is now common was not always so familiar, (8) so technology developers relied heavily upon real-world analogs--such as "files," "documents," a "desktop," "trash bins," "tabs," "folders," and "cutting and pasting"--to make computers more intuitive. (9) The standard interface of a computer--what is called the Graphical User Interface, or "GUI" (10)--is entirely skeuomorphic. (11) The computer does not include any actual files, folders, documents, or images; there are only ones and zeros, sectors and clusters, and magnetic platters and actuator arms. (12)

Historically, however, courts have not grappled with these distinct characteristics of modern technologies and, instead, have relied too heavily upon tempting but deceptive physical analogies. (13) But computer searches are different from searches of physical locations in many ways. Most importantly, they must be conducted by trained forensic examiners who can protect the integrity of the original evidence, as well as employ specialized techniques to detect erased, protected, or otherwise-obfuscated files. (14) Objects are not merely gathered and taken off-site but are carefully processed in a scientific fashion. (15) It is a lengthy process, as the sizes of standard hard drives and the amount of data being regularly generated have grown exponentially and, therefore, take much longer to copy. (16) There are also a number of technical reasons why law enforcement conducts a bit-by-bit mirror of the source media as its regular practice. (17) Yet, rather than assess the application of the law to the actual core functioning of the relevant technologies, courts rely on seemingly obvious stand-ins that are ultimately not apropos.

A recent case in the Second Circuit provides a clear example of when this "digital misunderstanding" inhibits the development of the law. In United States v. Ganias, (18) the government conducted lawful imaging of several of Stavros Ganias's hard drives, retaining full forensic copies containing data that were both responsive and non-responsive to the initial search warrant. (19) Ganias later alleged that the improper retention of the data--and, resultantly, a subsequent search three years later that was only possible because of that retention--violated his rights under the Fourth Amendment. (20) While the Ganias court acknowledged the limitations of the often-invoked "filing cabinet" analogy, (21) it nonetheless failed to establish the proper reasonableness standard for the search of lawfully seized digital data. (22) The case evinces the complications that arise from using pre-computer-age rules and procedures to address novel and complex technological questions. Given the revolutionary nature of today's digital landscape, this Note argues that it is unwise to attempt to force old frameworks onto non-analogous present-day situations. With digital evidence now pervading virtually every type of criminal prosecution, it is crucial to understand precisely that with which the courts are dealing and how it interacts with the Fourth Amendment.

This Note submits that, rather than adopt a clear approach in Ganias, thereby ensuring that the law stay apace with recent and unprecedented technological developments, the Second Circuit missed a crucial opportunity to recognize what is reasonable when searching digital data. (23) Because today's technologies are revolutionary and, therefore, fundamentally unique, they call for an entirely new framework and cannot be likened to more traditional situations with which the courts are more comfortable and familiar. Physical and digital objects have little, if anything, in common, (24) yet they are, nonetheless, conflated because technology developers use the vernacular of known real-world concepts in an attempt to lower the learning curve for the average computer user. (25) This Note suggests that such skeuomorphic designs and elements are now leading the law astray, as mimetic details lead many--including the courts--to focus not on the functioning of the technologies themselves but, instead, on what is familiar. Consequently, the Second Circuit's analysis does a disservice by not promoting the correct law for the technology actually before it and, instead, leaving such technology vulnerable to an understanding falsely grounded in the real-life objects merely mimicked in the digital space.

Given these considerations, this Note concludes that the Second Circuit should have ruled affirmatively in Ganias that what the government did was facially reasonable and sufficient to satisfy Fourth Amendment requirements. (26) Instead, the court decided the case on good-faith grounds, (27) refraining from developing the law as to the complex technological questions that were presented.

This Note explores how the courts view digital information for Fourth Amendment purposes, using Ganias to show how the analysis can be distorted if electronic storage media are not properly understood. Part I provides context for the discussion: Section I.A recounts the facts and procedural history of Stavros Ganias's case, which resulted in a rare Second Circuit en banc review of his appeal; Section I.B provides a general background to relevant Fourth Amendment jurisprudence, examining the text itself, the motivation for its ratification, how courts have interpreted the warrant and particularity requirements, and the Amendment's application to computer evidence. Part II addresses the shortcomings of a non-technical analysis of digital data, highlighting the pitfalls of relying on enticing but false physical analogs. It also critiques the Ganias opinion for not fully embracing the realities of electronic evidence and for not defining the boundaries of reasonable computer forensic examination. Finally, Part III proposes that the issues at play in Ganias would be abated if courts viewed the authorized seizure as one of a physical device--a hard drive of data--rather than of the information itself, drawing several analogies to establish that no unreasonable government encroachment occurred in Ganias because warrants were issued by a neutral judge, agents remained within the scope of those authorities, and no reasonable expectation of privacy could, therefore, remain.

1. STAVROS GANIAS, THE FOURTH AMENDMENT, AND COMPUTER SEARCHES AND SEIZURES

   The progression of the McCarthy and Ganias investigations led to the emergence of the Fourth Amendment question with which this Note is concerned. This Part provides the necessary background for the discussion. Section I.A summarizes the factual and procedural aspects of the case. Section LB then turns to the fundamentals of Fourth Amendment jurisprudence, with a special focus on digital searches and seizures.

   1. The McCarthy and Ganias Investigations and Prosecutions

      Stavros Ganias was an accountant in Connecticut. (28) Among his clients was James McCarthy, the owner of Industrial Property Management ("IPM") and American Boiler, Inc. ("AB"). (29) In August 2003, government agents learned that IPM may have engaged in fraud related to an Army contract it had been awarded. (30) As part of its investigation into that misconduct, in November 2003, the government applied for and obtained warrants to search both IPM's and AB's offices. (31) In addition, the warrant authorized the search of Ganias's business, Taxes International, where IPM's and AB's financial books were maintained. (32) Agents were authorized to seize "[a]ll books, records, documents, materials, computer hardware and software and computer associated data relating to the business, financial and accounting operations of [IPM] and [AB]." (33)

      Because Ganias was not suspected of any crimes at that time, agents specially trained in computer forensics elected to create mirror images (34) of the three computers they discovered rather than physically remove the hard drives from the office and, thereby, significantly...