August 30, 2009
Legal Department
The Cyber Revolution Reaches the Ninth Circuit
The Ninth Circuit just decided United States v. Comprehensive Drug Testing which includes some very important new rules for seizing data on people's computers. Or so I'm told by folks like Scott Greenfield and Orin Kerr, who understand these things far better than me.
As I understand the problem Kozinski is trying to solve, the government used to treat a search for anything on a computer as a license to rummage through all of it. This makes a certain amount of technical sense because the name of the file is merely a convention for humans: The file WeddingGuests.xls can actually contain the block-by-block sales data for your drug-dealing empire, so the police are going to want to look at it if they have a warrant for the records of a criminal enterprise.
Even the file extension that identifies the content---.mp3, .jpg, .xls, .doc---is a standard that can be bent or broken. Rename ChildPorn.jpg to 2009Q3-PandL-Newark.xls and it will look like a spreadsheet in Windows Explorer, and if you double click it, Windows will try unsuccessfully to open it with Excel. Law enforcement agencies are aware of this, so they will want to examine every file.
Once they've looked at a file, even if it's not the one they're searching for, they can't un-look at it. Under the plain view exception to the warrant requirement, they can go ahead and use it in a criminal investigation.
In the physical world, the cops generally can't do this so extensively. If they have a warrant to search your home for a baseball bat used as a murder weapon, they can't search your medicine cabinet and read your checkbook. (On the other hand, if they they open your closet and see 20 kilos of cocaine, it comes in under the plain view exception, since it was reasonable for them to look in the closet.)
In the world of your computer, it's all just data on the disk, and there's no way to distinguish it until after they've oopened it up. It's as if they had a warrant to search your house for a murder weapon, but then took the time to rummage through everything you own, and it all came in as evidence.
It's understandable, but it's also a problem. Lots of people these days keep their entire lives on their computer, and the Constitutional requirement that warrants must be "particularly describing the place to be searched, and the persons or things to be seized" seems to be violated if every computer search allows police to rummage through the digital reflections of our entire lives.
The Ninth Circuit's ruling fixes that problem in a rather extraordinary manner, as summarized by Orin Kerr:
They created a set of prophylactic rules that has the effect of banning plain view through ex ante restrictions. The Ninth Circuit took a truly remarkable step: It ordered the government to behave exactly as it would behave if the plain view exception did not exist. The court wrote out a list of ways that the government would act if there were no plain view exception, and then ordered the government to follow those rules as a condition of getting the warrant in the first place. The plain view exception is gutted by ensuring the government will never be in a position to try to offer the evidence to a court in the first place.
(Chief Judge Alex Kozinski, who wrote the opinion, has had a few problems of his own with people looking over his computer files, so maybe he's one of those empathetic judges everyone is talking about.)
As others have pointed out, no computer search in history has ever met this standard, so things are going to get complicated for a while. Or at least until the Supreme Court reverses it, as is their way with Ninth Circuit decisions that make life too hard for law enforcement agencies.
On the other hand, I don't think the Ninth Circuit went far enough. When law enforcement agencies search your house, they eventually leave. They may take some evidence with them, but you do get to use your house again.
But when law enforcement agencies want to search your computer, they often take it with them and keep it during the investigation. This is a problem for those of us who live our lives on the computer and make our livings from it. (Backups don't help, since the government can and will take those too.) The government can investigate you for a white collar crime and wipe out your business by taking all your computers without ever coming close to getting a conviction.
There's no excuse for this. A copy of the digital data on your computer is exactly as good as the original, so they only need a copy for purposes of an investigation. Taking your whole computer is either lazy or downright punitive. It's punishment without trial.
Going even further, I'd like to see our computers recieve some of the same protections that our bodies and minds do. My computer may not be wired to my brain like some sort of cyberpunk implant, but it's a pretty intimate part of my life. And it can only contain information and ideas, so it's not like there are safety concerns.
I find it perverse that any communication with our lawyers is protected from government snooping, but our own personal records, notes, and diary contents are considered fair game for a government fishing trip. (Important tip to diarists: Label your diary as a "Privileged Legal Communication." Claim it's a timeline of events for your lawyer.)
Finally (and if you know me you've seen this coming) we wouldn't have most of these problems if we didn't criminalize so much consensual conduct. Time and again, these screwy Fourth Amendment exceptions turn up in cases without victims, where the government has to go snooping because nobody else cares that the so-called crime has occurred.
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