Why the plain view doctrine should not apply to digital evidence.

• Author: Chang, RayMing

TABLE OF CONTENTS I. INTRODUCTION II. THE PECULIAR NATURE OF DIGITAL PROPERTY III. OBTAINING A WARRANT FOR DIGITAL PROPERTY A. Probable Cause B. Particularity Particularly IV. THE DOCTRINE'S EFFECT ON EXECUTION OF DIGITAL WARRANTS A. Generally B. The Tenth Circuit's Avoidance of the Plain View Doctrine C. Illusory Limits to the Plain View Doctrine 1. File Labeling and File Types 2. Deleted Files 3. On-site Search, Mirroring, or Seizure 4. Time Limits D. Limited Protection Against the Plain View Doctrine 1. Professional Privilege 2. Privacy Protection Act V. THE FUTURE OF THE PLAIN VIEW DOCTRINE FOR DIGITAL EVIDENCE A. Maintaining the Status Quo B. Partially Eliminating the Doctrine for Digital Evidence C. Completely Eliminating the Doctrine for Digital Evidence VI. CONCLUSION I. INTRODUCTION

Courts should not apply the plain view doctrine to digital evidence because the application of the plain view doctrine to digital evidence threatens to nullify Fourth Amendment protection for digital property. (1) What constitutes plain view for digital property is still a question of first impression for most courts. However, several courts have addressed this issue. These courts have begun to apply the plain view doctrine, or theories that bear a striking resemblance to the plain view doctrine, in such a manner that transforms searches executed pursuant to a warrant for digital property into general searches of the digital property. In other words, digital property warrants are transforming into a species of de facto general warrants. General warrants are bad. The Fourth Amendment was designed to protect against general warrants. (2)

The Fourth Amendment is intended to protect Americans by prohibiting unreasonable searches and seizures. (3) Fourth Amendment protection naturally extends to digital property stored on computers and other electronic storage devices. But, of course, digital property is different from physical property. The Tenth Circuit, in United States v. Walser, (4) aptly stated the dilemma:

The advent of the electronic age and ... the development of desktop computers that are able to hold the equivalent of a library's worth of information, go beyond the established categories of constitutional doctrine. Analogies to other physical objects, such as dressers or file cabinets, do not often inform the situations we now face as judges when applying search and seizure law. This does not, of course, mean that the Fourth Amendment does not apply to computers and cyberspace. Rather, we must acknowledge the key differences and proceed accordingly. (5) The plain view doctrine is precisely such an area of Fourth Amendment jurisprudence that requires us to acknowledge those key differences and proceed accordingly.

The plain view doctrine is an exception to the Fourth Amendment that allows police to use evidence found during the execution of a warrant that is technically outside the scope of the warrant. "To satisfy the plain view doctrine: (1) the officer must be lawfully in the place where the seized item was in plain view; (2) the item's incriminating nature was 'immediately apparent;' and (3) the officer had 'a lawful right of access to the object itself.'" (6)

Courts have begun grappling with how the plain view doctrine applies to digital evidence and have attempted to define the scope of digital property search warrants. Police have also begun to grapple with this issue and various government bodies have issued non-binding search and seizure guidance for computers. (7) Unfortunately, case law to date reveals that searches executed pursuant to warrants covering digital property can easily transform into general searches of a suspect's digital property.

A key difference between non-digital and digital property is that police must search all of a suspect's digital property in order to effectively execute a warrant because of the amorphous nature of digital data. The combination of the need for comprehensive searches of digital property and the fact that evidence outside the technical scope of a warrant can be admitted into evidence via the plain view doctrine causes a digital property warrant to transform into a sort of de facto general warrant. Even the Tenth Circuit's attempt to avoid allowing general searches of digital property by requiring the police to obtain additional warrants when they find evidence of crimes outside the scope of the original warrant still results in de facto general searches because the incriminating evidence has already been uncovered. The implications are startling.

American lives have come to revolve around digital property, as evidenced by the explosion in computer usage in the United States and the growing prevalence of the Internet in everyday life. Inevitably, digital property will become more valuable. Digital property will become more pervasive. Because of the plain view doctrine, digital property will also become more incriminating.

This article analyzes how courts apply the plain view doctrine to warrants for digital evidence. It focuses on digital property contained in individually owned computers and storage devices. (8) Part II briefly examines the special nature of digital property. Part III examines the logistics of getting a warrant for digital evidence, focusing especially upon particularity. Part IV analyzes how the plain view doctrine affects the execution of a digital evidence warrant. Part V discusses three alternative future paths and compares the benefits that accrue to courts, police, and citizens from: (1) maintaining the status quo, (2) partially eliminating the application of the plain view doctrine to digital evidence, or (3) completely eliminating the application of the plain view doctrine to digital evidence. Ultimately, this article argues that courts should no longer apply the plain view doctrine to warrants for digital evidence. (9)

2. THE PECULIAR NATURE OF DIGITAL PROPERTY

   Undisputedly, digital property is different from the "papers" and "effects" that the Founding Fathers contemplated when adopting the Fourth Amendment. (10) The manifest difference between digital and physical property merits special consideration. Digital storage devices can hold an enormous quantity of data. (11) The School of Information Management and Systems at the University of California, Berkeley estimates that about five exabytes of new information, which is equivalent to 37,000 times the amount of information in the Library of Congress book collections, was created in 2002 alone. (12) Of the five exabytes of new information created in 2002, 92% were created and stored on magnetic media, primarily computer hard disks. (13) The computers that created much of that digital data are now ubiquitous. The U.S. Census Bureau found that in August 2000 over half of the households in the United States, fifty-four million households, had one or more computers. (14)

   People now use computers and other digital devices for almost everything imaginable. Rather than storing images, movies, documents, correspondence, personal records, and a plethora of other personal data in physical form, people are storing this data in digital media. The physical world is converging with the digital world. Consequently, it is inevitable that the amount of digital property created will continue to grow. As digital property becomes embedded in our everyday lives, people envisage the digital property in a "virtual world" using labels from non-digital physical property counterparts such as "files," "cabinets," and "desktops."

   At first blush, the analogy between physical files and virtual files seems workable, and courts have attempted to use this analogy. (15) However, analogizing virtual objects in a digital storage device with physical papers and effects is a tenuous proposition. Digital data stored on computers require interfaces and translation in order for a person to perceive the data. Data is represented numerically and stored on elements that can be read to interpret zeros and ones. The sheer diversity of information that can exist in a digital storage device is mind boggling. An object in the physical world is discrete and is easily separable from the object's physical location, whereas digital data must be interpreted through machines because one bit looks much like another bit until a machine organizes it into something useful.

   Police cannot see digital property directly. When police look at a hard drive, they cannot interpret the magnetic charges on the surface of the disks with their bare eyes. Neither can a police officer see the Fowler-Nordheim tunneling that links gates within a flash drive's EEPROM chip. (16) Police cannot see whether digital property is evidence of a crime without electro-mechanical assistance. One bit "looks" much like another bit until a machine reads a digital property storage device and a program, which is also a set of bits, translates the digital property into a perceivable form that may or may not represent the true nature of the digital property.

   Plain view considerations make digital property's special characteristics even more apparent. Is it really plain view if police must "open" every "file" on a digital storage device in order to see what data is really contained within that file? Is it really plain view if one has to reconstruct the bit structure of a file? Are "hidden files" really in plain view? What if file tables contain incorrect information? When forensic specialists reconstruct files and recover data that a person might assume is permanently deleted, is that plain view? (17) What about file size? After all, the size of a file does not accurately predict its contents; a one kilobyte (1K) file containing child pornography is just as illegal as a one hundred megabyte (100MB) file containing child pornography. Furthermore, the virtual or physical labels that purport to describe digital property are not dispositive. Are encrypted files in plain...