Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations
"The purpose of this publication is to provide Federal law enforcement agents and prosecutors with systematic guidance that can help them understand the legal issues that arise when they seek electronic evidence in criminal investigations.
The law governing electronic evidence in criminal investigations has two primary sources: the Fourth Amendment to the U.S. Constitution, and the statutory privacy laws codified at 18 U.S.C. §§2510-22, 18 U.S.C. §§2701-12, and 18 U.S.C. §§3121-27. Although constitutional and statutory issues overlap in some cases, most situations present either a constitutional issue under the Fourth Amendment or a statutory issue under these three statutes. This manual reflects that division: Chapters 1 and 2 address the Fourth Amendment law of search and seizure, and Chapters 3 and 4 focus on the statutory issues, which arise mostly in cases involving computer networks and the Internet.
Chapter 1 explains the restrictions that the Fourth Amendment places on the warrantless search and seizure of computers and computer data. The chapter begins by explaining how the courts apply the 'reasonable expectation of privacy' test to computers; turns next to how the exceptions to the warrant requirement apply in cases involving computers; and concludes with a comprehensive discussion of the difficult Fourth Amendment issues raised by warrantless workplace searches of computers. Questions addressed in this chapter include: When does the government need a search warrant to search and seize a suspect's computer? Can an investigator search without a warrant through a suspect's pager found incident to arrest? Does the government need a warrant to search a government employee's desktop computer located in the employee's office?
Chapter 2 discusses the law that governs the search and seizure of computers pursuant to search warrants. The chapter begins by reviewing the steps that investigators should follow when planning and executing searches to seize computer hardware and computer data with a warrant. In particular, the chapter focuses on two issues: first, how investigators should plan to execute computer searches, and second, how they should draft the proposed search warrants and their accompanying affidavits. Finally, the chapter ends with a discussion of post-search issues. Questions addressed in the chapter include: When should investigators plan to search computers on the premises, and when should they remove the computer hardware and search it later off-site? How should investigators plan their searches to avoid civil liability under the Privacy Protection Act, 42 U.S.C. §2000aa? How should prosecutors draft search warrant language so that it complies with the particularity requirement of the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure? What is the law governing when the government must search and return seized computers?"
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