How safe is your data? Conceptualizing hard drives under the Fourth Amendment.

• Author: Palumbo, Marc

Introduction I. The Historical Development of the Private Search Doctrine and Search Warrant Requirement A. The Search Warrant Requirement B. The Private Search Doctrine C. Hard Drive Technology II. Discussion: How Should Hard Drives Be Viewed in the Fourth Amendment Context? A. Closed Containers: The "Physical Box" Approach B. Virtual Warehouses: The "Virtual File" Approach C. A New Approach?: United States v. Crist III. Argument: A New Approach--Virtual Files and Search Protocols A. Two Problematic Approaches B. Virtual Files and Search Protocols: A Proposal C. Application in Practice: How Would a Modified Approach Work? Conclusion INTRODUCTION

In January 2009, Western Digital Corporation began shipment of the Caviar Green--the world's first two-terabyte hard drive. (1) This drive space is roughly equivalent to 129 million pages of Microsoft Word files, (2)--enough to fill the books contained on three floors of a typical academic library (3)--or up to 400,000 digital photos. (4) Far from the room-sized monstrosities of early computer technology, the Caviar Green stands just one inch tall, six inches long, four inches wide, and weighs less than two pounds. (5) Only a few years ago the average hard drive capacity was merely four percent of what is currently available. (6) While a technological marvel, this new massive storage capability also creates interesting and complex problems regarding individual privacy and the Fourth Amendment.

The most pressing issue concerning hard drives and individual privacy is how they are conceptualized within Fourth Amendment jurisprudence. How courts decide to classify hard drives will have dramatic consequences on the security of the information stored on them. Federal courts only began analyzing this problem a decade ago, but during the ten years that have elapsed since the first major decision, computer technology grew exponentially.

The majority of courts treat the entire hard drive as a single closed container. (7) Professor Orin Kerr has deemed this the "physical box" approach. (8) Looking at hard drives in this way renders the zone of a Fourth Amendment search to include the entire hard drive--no matter how large. In other words, a search warrant for one e-mail message has the effect of making everything on that hard drive eligible for investigators to examine. This view has the practical consequence of enabling government agents to access all of the information stored on a hard drive regardless of whether that information has anything to do with the reason the computer is being searched.

Under the minority approach, individual files or folders on a hard drive are treated as separate entities. This approach treats the individual files or folders as the zone of the search and has been described as the "virtual file" approach. (9) In practice this means that each file or folder, depending on how broad or narrow the proper zone of search was drawn, would constitute a separate container in terms of traditional Fourth Amendment doctrine.

Recently, in United States v. Crist, a district court tried to safeguard individual rights by characterizing hard drives in what it believed to be an alternative to the closed container and virtual file approaches. (10) Crist dealt with a government search of a computer that had been previously accessed by a private party and the issue of how far, if at all, the government could exceed the scope of the properly conducted private search. The court explicitly held that a hard drive is not analogous to a single closed container and that viewing it as such would impermissibly jeopardize privacy rights. (11) Importantly, however, Crist held that the individual platters---or smaller physical subsections of the hard drive--were analogous to closed containers. (12) Accordingly, the court ruled that the government could not search an entire hard drive consisting of multiple platters. While admirable in its effort, the Crist court inadvertently advanced the closed container approach with the underlying rationale for its new approach to hard drive searches. If other courts adopt the Crist logic, the legal system runs the risk of inadvertently perpetuating the closed container logic in a new doctrine that purportedly seeks to safeguard individual privacy.

Not surprisingly, almost all of the cases dealing with courts' conceptualizations of hard drives revolve around child pornography. Because child pornographers are unsympathetic defendants, this concentration of case law is arguably one of the main reasons the issue has not been thoroughly addressed. One would not expect a large contingent of the legal world to rally around the rights of individuals who possess such disturbing material. It is difficult for any judge to craft a rule that excludes evidence of such despicable acts when the government has a seemingly rational justification for carrying out the search in the manner it does. These vulnerabilities, however, do not only impact child pornographers. Given the increasing technological changes surrounding hard drives and data storage, the child pornographer defendant of today may very well turn into the business executive defendant of tomorrow. Businesses that store massive amounts of sensitive material on central servers or databases are at risk. Professionals who conduct sensitive operations and communicate via e-mail are at risk. In fact, anyone who stores important data on a computer is at risk. That the cases that have so far reached the federal courts have dealt almost exclusively with despicable actions should not serve as a bar to the development of Fourth Amendment doctrine that properly balances the privacy concerns of individuals against the needs of law enforcement officials moving forward.

This Note posits that the majority approach, in which hard drives are characterized as closed containers, is not viable. Such a classification cannot be justified as the amount of data that can be stored on a single hard drive skyrockets and individuals increasingly rely on computer storage for sensitive information. Giving government agents carte blanche authority to sift through enormous amounts of personal information (13) has no parallel in traditional Fourth Amendment practice. When police obtain a warrant to search a home they may not search any and all containers they discover in the process. all further searches of discovered containers must be supported by probable cause. (14) Defining the proper zone of search on hard drives as individual files or folders will better serve to protect the privacy rights of individuals while at the same time giving government authorities enough autonomy to not impair their investigatory duty. As technology grows and more hard drive cases are brought under the Fourth Amendment, criminal defense lawyers will develop stronger arguments in favor of suppressing evidence found as the fruits of these general searches. Moving away from viewing hard drives as closed containers will also protect law enforcement by removing uncertainty as to the future admissibility of evidence uncovered during computer searches.

This Note will examine the history of both the search warrant requirement and private search doctrine, as well as analyze how the conceptualization of hard drives impacts individual privacy in both contexts. Part I examines the history of how courts have viewed hard drives and provides a brief primer on the technology that operates within hard drives in order to demonstrate that such devices are not simply analogous to closed containers. Part II examines the rationales behind the approaches courts have taken and discusses the problems inherent in both the traditional approaches and the new approach taken in Crist. (15) Finally, Part III proposes adopting a modified virtual file approach based on the fact that the closed container approach will grow increasingly problematic as the average size of hard drives increases. The cases treating hard drives as closed containers were decided nearly a decade ago (16) when the average hard drive size was just a fraction of what it is today. Adhering to the general rule that hard drive capacity doubles every two years, (17) it is not beyond the realm of possibility to suggest that the home consumer will be able to purchase ten-terabyte hard drives in the next five years. That means the amount of data left vulnerable to a government search based on a supposedly narrow and particular warrant will be over one hundred times greater than when the first case analogizing a hard drive to a closed container was decided. (18) Adhering to the closed container analogy, or even the virtual file approach as it has been adopted by the federal courts, will expose massive amounts of data to government officials--more data than the courts that first examined the issue could ever have imagined. Moreover, continuing to follow either approach will leave law enforcement officers lost as to what evidence will be admissible or subject to suppression.

1. THE HISTORICAL DEVELOPMENT OF THE PRIVATE SEARCH DOCTRINE AND SEARCH WARRANT REQUIREMENT

   The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (19) Part I of this Note examines the historical development of this maxim as it applies to modern computer searches. Part I.A discusses the development of the search warrant requirement. Part I.B focuses on the historical development of the Fourth Amendment's private search doctrine. Finally, Part I.C briefly introduces the technology behind contemporary computer hard drives.

   1. The Search Warrant Requirement

      In 1967 the Supreme Court decided Katz v. United States (20) and set forth the modern idea that the Fourth Amendment "protects people, not places." (21) In his oft-quoted concurrence, Justice Harlan explained this adage to mean that the Fourth Amendment protects an individual when...