1-22-2010 National:
Should courts adopt a new set of Fourth Amendment rules to regulate how the police can search computers for evidence? In particular, does the fact that so much electronic evidence outside the scope of a warrant can come into “plain view” during a computer search require a different approach to whether that evidence outside the scope of the warrant should be admitted?
Some courts have thought so. In the Tenth Circuit, for example, the usual objective test for admitting plain view evidence has been replaced by a subjective test designed to narrow the scope of plain view: Evidence outside the scope of a warrant is permitted in plain view only if the agent was subjectively looking for evidence within the scope of the warrant. And in the Ninth Circuit, the en banc court recently adopted a complex set of prophylactic rules to avoid admission of plain view evidence altogether in United States v. Comprehensive Drug Testing.
In the last two days, however, two circuits have handed down published decisions creating apparent circuit splits on both of these aspects of how the plain view exception applies to computer searches. Both of these circuits, the Fourth and the Seventh, reject the idea of adopting new rules for computer search and seizure.
1. United States v. Williams. The first decision is a Fourth Circuit opinion by Judge Niemeyer in United States v. Williams, expressly disagreeing with the Tenth Circuit’s plain view decision in United States v. Carey. Carey adopted a subjective test for the plain view exception to computer searches: Under that approach, the question is whether the agent who was searching through the computer was subjectively looking for evidence within the scope of the warrant. Judge Niemeyer disagreed:Williams, relying on the Tenth Circuit’s opinion in United States v. Carey, advances an argument that the plain-view exception cannot apply to searches of computers and electronic media when the evidence indicates that it is the officer’s purpose from the outset to use the authority of the warrant to search for unauthorized evidence because the unauthorized evidence would not then be uncovered “inadvertently.”
This argument, however, cannot stand against the principle, well-established in Supreme Court jurisprudence, that the scope of a search conducted pursuant to a warrant is defined objectively by the terms of the warrant and the evidence sought, not by the subjective motivations of an officer.
While Williams relies accurately on Carey, which effectively imposes an “inadvertence” requirement, such a conclusion is inconsistent with Horton. Inadvertence focuses incorrectly on the subjective motivations of the officer in conducting the search and not on the objective determination of whether the search is authorized by the warrant or a valid exception to the warrant requirement
In this case, because the scope of the search authorized by the warrant included the authority to open and cursorily view each file, the observation of child pornography within several of these files did not involve an intrusion on Williams’ protected privacy interests beyond that already authorized by the warrant, regardless of the officer’s subjective motivations.
Judge Niemeyer concluded by emphasizing that computer search and seizure rules should be the same as traditional search and seizure rules:At bottom, we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents. . . . We have applied these rules successfully in the context of warrants authorizing the search and seizure of non-electronic files, see Crouch, 648 F.2d at 933–34, and we see no reason to depart from them in the context of electronic files.
2. United States v. Mann. Meanwhile, just yesterday, the Seventh Circuit handed down United States v. Mann, another plain view computer case that was authored by Judge Rovner. The Mann court seems to accept the Carey inadvertence standard for plain view (or arguably takes a third approach, that the test is whether the agent knew or should have known that the file opened was outside the scope of the warrant).
But in the court then goes on to reject the Ninth Circuit’s Comprehensive Drug Testing decision:Although the Ninth Circuit’s rules provide some guidance in a murky area, we are inclined to find more common ground with the dissent’s position that jettisoning the plain view doctrine entirely in digital evidence cases is an “efficient but overbroad approach.” Id. at 1013 (Callahan, J., concurring in part and dissenting in part). As the dissent recognizes, there is nothing in the Supreme Court’s case law (or the Ninth Circuit’s for that matter) counseling the complete abandonment of the plain view doctrine in digital evidence cases. Id. We too believe the more considered approach “would be to allow the countours of the plain view doctrine to develop incrementally through the normal course of factbased case adjudication.” Id. We are also skeptical of a rule requiring officers to always obtain pre-approval from a magistrate judge to use the electronic tools necessary to conduct searches tailored to uncovering evidence that is responsive to a properly circumscribed warrant. Instead, we simply counsel officers and others involved in searches of digital media to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.
Two circuit splits on computer search and seizure in two days — not bad. I’ll probably offer some commentary on these decisions over the next few days, but for now I just wanted to note the new decisions. Thanks to Doug Berman for bringing them to my attention. ..Source.. from The Volokh Conspiracy
January 22, 2010
Plain View for Computer Searches Generates Two Circuit Splits in Two Days: United States v. Williams and United States v. Mann
December 3, 2008
EU to search out cyber criminals
12-3-2008 Global:
Remote searches of suspect computers will form part of an EU plan to tackle hi-tech crime.
The five-year action plan will take steps to combat the growth in cyber theft and the machines used to spread spam and other malicious programs.
It will also encourage better sharing of data among European police forces to track down and prosecute criminals.
Europol will co-ordinate the investigative work and also issue alerts about cyber crime sprees.
Data share
The five-year plan won the backing of the EU ministers at a meeting which also granted 300,000 euros (£250,000) to Europol to create the system to pool crime reports and issue alerts about emerging threats.
The ministerial meeting also backed the anti-cyber crime strategy that will see the creation of cross-border investigation teams and sanction the use of virtual patrols to police some areas of the net.
Other "practical measures" include encouraging better sharing of information between police forces in member nations and private companies on investigative methods and trends.
In particular the strategy aims to tackle the trade in images of children being sexually abused. In a statement outlining the strategy the EU claimed "half of all internet crime involves the production, distribution and sale of child pornography".
Forces will also take part in "remote searches" and patrol online to track down criminals. The EU said controls were in place to ensure that data protection laws were not breached as this information was gathered and shared.
"The strategy encourages the much needed operational cooperation and information exchange between the Member States," said EC vice-president Jacques Barrot in a statement.
"If the strategy is to make the fight against cyber crime more efficient, all stakeholders have to be fully committed to its implementation," he added. ..News Source.. by BBC
July 31, 2008
NY- Computer searches
7-31-2008 New York:
Congress should establish guidelines
International travelers carrying laptops and cell phones are being forced to allow customs agents to rummage through their electronic contents much as they do travelers' luggage.
Only the searches can be more intrusive since they invade private, personal communications and confidential business data. Material has been copied by security officials. Equipment has been confiscated and held for months. All without a search warrant or even what might pass as reasonable cause.
A corporate executive from Washington complained that he was ordered to turn on his cell phone and then watched as the customs agent checked out the contents.
An engineer returning from London was required to open his laptop. A federal agent copied the Web sites the man had visited.
Agents seized the laptop of a marketing executive with assurance it would be returned in a few days. More than a year later, she still does not have it back.
A spokeswoman for Customs and Border Protection said the department does not seize electronic items unless it suspects wrongdoing and any copied material is retained only if it's relevant in an investigation. Whether that is true is impossible to determine. None of those who have publicly complained about the seizures have yet been charged with a crime.
In effect, agents conduct the electronic searches at whim.
Homeland Security officials say it is the same as searching other luggage. Not so, says Susan Gurley, executive director of the Association of Corporate Travel Executives.
The laptops and phones can contain confidential business records. Seizing them can interfere with business transactions. Some corporations are restricting the type of business data employees may carry on laptops when traveling overseas.
"When your luggage is looked at, you get your luggage and all your clothes back. The difference with a computer," she said, "is that you don't know if all the information that has been downloaded has been returned."
And it leaves open the question of who has access to the data that may be left lying around unprotected.
Concerns have also been raised about racial profiling that singles out certain religious or ethnic groups.
Lawsuits have been filed challenging the practice and seeking more information about its application. However, lower level federal courts have upheld the legitimacy of the searches, which is reason why Congress has to intervene.
Clear guidelines are needed to establish when such searches are permissible, to control seizure of equipment and then to ensure security of any confiscated or copied data. ..News Source.. by Watertown Daily Times.com
June 13, 2008
EFF, others fighting privacy-invading border laptop searches
6-13-2008 National:
The Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) are asking the Ninth Circuit Court of Appeals to review a decision that allows border patrols to search US citizens' laptops for no reason. The two groups filed an amicus brief (PDF) with the Court, asking it to rehear the case and, hopefully, reverse the decision. They argued that the decision is a violation of citizens' Fourth Amendment rights that protect them from unreasonable search and seizure.
The case goes back to 2005, when a US citizen named Michael Arnold (US -v- Arnold) returned to the US from the Philippines. A Customs and Border Patrol agent asked Arnold to fire up his laptop and browsed through two folders on the machine's desktop, labeled "Kodak Pictures" and "Kodak Memories." After finding a photo that "depicted two nude women," the search continued, turning up what the agent believed may have been child pornography. Arnold's computer was then seized and he was arrested.
In the resulting court case, Arnold argued that the search was unreasonable and a violation of his Fourth Amendment rights. Arnold claimed that a laptop was more like "home" and "the human mind" than a typical closed container and that searching it required a reason. A district court agreed that Arnold's argument that a laptop was different from normal closed containers like luggage, which are routinely examined by border agents without particular cause.
A three-judge panel from the Ninth Circuit Court ruled on an appeal of the case in April of this year, however, and overturned the district court's decision. The panel said that border agents are free to routinely search citizens' laptops and other electronic devices because they already have wide latitude to search suitcases, purses, wallets, and other documentation without reasonable suspicion. Even if they don't see anything of interest, they can still simply search and confiscate your laptop and other electronic gadgets like external hard drives, phones, and PDAs, simply because they feel like it, and all in the name of national security.
The EFF and ACTE now argue that the Court's decision essentially renders useless the Fourth Amendment and puts citizens' privacy and identities at risk, because border patrols can confiscate laptops and make full copies of their contents. As anyone traveling with a laptop knows, our machines can contain personal and professional communications, banking information, legal information, tax documents, photos, (in the case of journalists) communications with confidential sources, and more—all of which can simply be copied over to a government computer and used however the government pleases. "[T]hese random searches give businesses and individuals a reason not to travel across US borders to conduct business, and they force businesses to expend significant resources protecting confidential information," reads the brief.
The two groups argue that, because of the volume of information stored on a laptop, the level of privacy invasion at a border search is "enormous," not to mention that computers often contain information that users may not know about or have tried to erase. Basically, the EFF and ACTE say that the information contained within doesn't quite compare to rifling through the selection of N'Sync bobblehead dolls that I voluntarily packed away in my suitcase, or the pocket change rolling around at the bottom of my bag. Embarrassing, perhaps, but not a clear and open window directly into every aspect of my life—even the parts I've tried to erase.
"[T]he panel decision failed to appreciate the constitutional concerns raised when border agents randomly search and seize laptop computers from international travelers," conclude the EFF and ACTE. They ask that the Court require only reasonable suspicion of a crime before border agents may search the contents of someone's computer, and expect a decision from the Court on whether to rehear the case within the next few months. ..News Source.. by Jacqui Cheng
