Tech Tips

• Jurisdiction: United States,Federal
• Citation: Vol. 38 No. 2 Pg. 52
• Publication year: 2015
• Pages: 52
• Year: 2015

Tech Tips Vol. 38 No. 2 Pg. 52 Wyoming Bar Journal April, 2015

Blake A. Klinkner President, Young Lawyers Section

Digital Evidence and the Fourth Amendment

United States v. Ganias and Judicial Recognition of the “Right to Deletion”

The United States Court of Appeals for the Second Circuit recently decided an important case that will have far-reaching implications for digital evidence in criminal cases. In United States v. Ganias, the Second Circuit held that a defendant’s Fourth Amendment rights were violated when the government, under a valid search warrant, made copies of the defendant’s computer drives but then failed to delete files which were outside of the scope of the search war-rant.^[1]

In Ganias, the U.S. Army began investigating a tip received in August 2003 that two of its contractors were defrauding the government.^[2] The confidential informant reported that evidence of this fraud could be found at the accounting firm owned by Ganias, who served as the accountant for the contractors, and a warrant was executed in November 2003 that allowed investigators to seize from Ganias’ office all documents related to the two contractors.^[3] Investigators did not physically seize any of Ganias’ computer equipment during their search; rather, investigators used their own portable equipment to make identical copies or “forensic mirror images” of Ganias’ computer drives, which included “files beyond the scope of the warrant” such as Ganias’ personal financial records.^[4] Investigators made forensic mirror images of Ganias’ computer drives because it would have been inconvenient for Ganias if they removed his hardware or remained onsite to explore his drives for warrant-specifies. In addition, investigators made identical copies of Ganias’ files because this allowed them to search through the files at a later time and place where it would be most convenient to investigators. When the Army investigators left Ganias’ firm and returned to their office, they transferred the copied files onto DVDs, but did not review these files until eight months later.^[5] In December 2004, the Army and the Internal Revenue Service completed their isolation and extraction of all files relevant to the two contractors.^[6] The government was aware at this time that all remaining files contained on the DVDs were outside the scope of the search warrant, but the government did not erase these non-responsive files because the government believed that these records...