GSB Vol. 14, NO. 5, Pg. 14. The Fourth Amendment and Computers: Is a Computer Just Another Container or Are New Rules Required to Reflect New Technologies?.

Author:Edward T.M. Garland and Donald F. Samuel
 
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Georgia Bar Journal

Volume 14.

GSB Vol. 14, NO. 5, Pg. 14.

The Fourth Amendment and Computers: Is a Computer Just Another Container or Are New Rules Required to Reflect New Technologies?

GSB JounralVol. 14, NO. 5February 2009The Fourth Amendment and Computers: Is a Computer Just Another Container or Are New Rules Required to Reflect New Technologies?Edward T.M. Garland and Donald F. SamuelOne hundred years ago, there was no "automobile exception" to the search warrant requirement.(fn1) Of course, there were no automobiles in the 18th century when the Fourth Amendment,(fn2) which bars unreasonable searches and seizures, was adopted as part of the Bill of Rights. Determining what is reasonable with regard to automobile searches needed to be decided for circumstances not envisioned by the authors of the Fourth Amendment.

Over the past 100 years, the U.S. Supreme Court has established a set of rules that govern the searching and seizing of automobiles, drivers and passengers. Dozens of Supreme Court decisions have focused on when automobiles may be stopped and searched; when drivers and passengers may be stopped and searched; and the duration and intensity of searches of the occupants, their luggage and the vehicle itself. by Edward T.M. Garland and Donald F. Samuel

There were no computers in the 18th century, either.

It has taken 100 years for the Court to announce dozens of rules that set forth exactly what the police may and may not do when it comes to stopping and searching automobiles, but it could take more than that to craft a set of rules that address the unique problems confronting the police and citizens when it comes to searching for, and seizing, information contained in computers.

Although there is considerable debate about whether traditional Fourth Amendment jurisprudence can adequately address any issue that arises in the context of a computer search, or whether an entirely new set of rules is needed,(fn3) the fact of the matter is that the computer presents new and intriguing problems in the area of the Fourth Amendment, regardless of whether the courts ultimately rely on adapting old rules to solve the problems, or adopting new rules to reflect the technologies.

Law enforcement agents' increasing reliance on computer seizures reflects the undeniable fact that computers not only contain evidence of criminal wrongdoing, but are primary tools in perpetrating crimes: "The computer facilitates the terrorist organization's ability to train its members, spread propaganda and case its targets, just as it helps the identity thief locate his victims, the pornograph-er to collect and view child pornography and the fraudster to generate fake documents."(fn4) According to the U.S. Census Bureau, in 2003, there were over 70 million households with laptop computers-roughly 62 percent of all households.(fn5)

When the Supreme Court decided Kyllo v. United States(fn6) eight years ago, the same dilemma confronted the Court: How should the Court apply a 200 year-old right to be free from unreasonable searches and seizures to circumstances (the ability to measure by thermal imaging the heat emanating from a house) that were unimaginable to the founding fathers? Justice Scalia wrote for the majority, "It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."(fn7) Indeed, the traditional boundaries of current Fourth Amendment law, including the foundational requirements of expectation of privacy and particularity, to say nothing of the concepts embodied in the various exceptions to the search warrant requirement, were written by the Court when the most technologically advanced instrument was a slide rule.(fn8)

How, then, should a court consider whether to issue a search warrant for the search and seizure of a computer? When does a person have a reasonable expectation of privacy in the contents of a computer, and does it make a difference if the computer is used at the workplace, or is shared by other people? Must there be a showing that the target computer is likely to contain evidence or contraband, or is it assumed that all suspects' computers contain such evidence if the suspect is shown to be a criminal? Should the police be permitted to seize a computer when a warrant authorizes the seizure of "documents" or "records" or "other evidence of a crime" if the warrant does not expressly permit the seizure of computers or disks in the "to be seized" paragraph of the warrant? How are the search warrant exceptions such as consent searches, searches incident to arrest and inventory searches, to be applied when the target is a computer? Are there any limits to what the police can do once they seize the computer? May they look throughout its entire contents? May they do so for days, or weeks or months? May they use sophisticated forensic tools to discover what was deleted years ago, or never even viewed by the computer's owner?

When considering the application of the Fourth Amendment to computers, consider the following:

In a typical laptop computer that a consumer buys, a person can save hundreds of thousands of documents, totaling millions of pages. This is the equivalent of several thousand bankers boxes of paper. The laptop on which this article was composed can save nearly 600,000 articles of this length.(fn9)

The computer will enable the user to access all e-mails previously sent and received for as long as the subscriber has been using e-mail communication (compare that to the "old days" when telephone messages- "While You Were Out" slips- and correspondence were haphazardly catalogued, archived or simply incinerated).(fn10)

The computer records and "remembers" every Internet site that the computer has visited, sometimes going back for years. The computer also stores the information about every Internet search conducted on the computer.(fn11)

Internet cache files store every picture that has come across the computer from the Internet, including those that "pop-up" and were not consciously retrieved or saved by the person sitting at the computer.(fn12)

Forensic tools that are available to law enforcement agencies (and, for that matter, the general public), can retrieve thousands of deleted messages, documents, photographs and Internet searches years after the computer user clicked the "delete" button.(fn13) Even emptying the recycle bin will not ensure that the information is, in fact, irretrievable.

In cases involving larger computers or servers (such as those found at various businesses that might be the subject of a search in a white-collar case), the above statistics increase exponentially.(fn14)

It is no more practical for one to set forth a compact set of rules to govern the searching and seizing of computers today than it would have been reasonable for a scholar to create an entire set of rules for the searching and seizing of automobiles when the first Model T rolled off the assembly line at the Piquette Avenue Plant in Detroit on Sept. 27, 1908. Indeed, it would have been much easier to enact an entire code to guide the police with respect to the searches of automobiles 100 years ago than it would be to promulgate rules for computer searches today. After all, a luxury-class Hummer isn't that much different from a Model T, but the computers of tomorrow will bear very little resemblance to the computers of today. The day is very near when computers and tracking devices in our homes-inside our refrigerators, our home theaters, our home security systems, our cars, as well as our personal laptop computers- will be connected to the outside world in such a way that the necessity for the police actually to enter the house to conduct a search (and seize the hardware) will be laughably antiquated before the ink dries on our hypothetical new rules. Tomorrow, police investigators will simply get a warrant (hopefully), enter our computers from their precincts and obtain all the information that they desire.

The Constitution is not the only limitation on invasions of privacy. Congress and state legislatures can also enact rules that govern access to electronic data. Congress, for example, has concluded that Title III (the federal wiretap statute) applies to e-mails.(fn15) Thus, the more rigorous Title III requirements must be satisfied before e-mails can be intercepted. With regard to stored e-mails (i.e., e-mails stored at AOL or Yahoo!), Congress enacted the Stored Wire and Electronic Communications and Transactional Records Access Act, which prescribes specific rules regarding law enforcement agents' ability to obtain copies of a person's e-mails from those institutions.(fn16) This article only addresses the constitutional issues raised in the context of computer searches.

Issues of Standing/ Expectation of Privacy

A party alleging an unconstitutional search under the Fourth Amendment must establish both a subjective and an objectively reasonable expectation of privacy in order to succeed in an effort to suppress the fruits of that search. The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable.(fn17) Obviously, a person has an expectation of privacy in the contents of a computer, just as he or she would have an expectation of privacy in a briefcase or file cabinet.(fn18) Certain unique...

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