Investigating crimes in an electronic age
Courts continue to wrestle with the impacts of technological development on the Constitution, especially rules governing police investigations and the use of evidence.
Pretend that you are under investigation for securities fraud, and the government seizes your computer. While searching your computer, they uncover your stash of music you’ve obtained off of The Pirate Bay. Can this evidence be used against you in a totally separate indictment for copyright infringement?
Back in August, the Ninth Circuit put strict limits on what police can and cannot do when executing a warrant for electronic data. The case involved a police investigation into steroid use in Major League Baseball. During the course of the investigation, the police discovered 10 names of players who had tested positive for steroid use. The police obtained a warrant to seize the computer records for these 10 players at a testing laboratory, but in executing the warrant, then seized the records for hundreds of other baseball players, as well as many other people.
On appeal, the Ninth Circuit found that the government had overreached and offered guidelines for the investigation of electronic data, including having a third party segregate and review the data before handing over anything relevant to the government:
The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation.
…
Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant. Absent further judicial authorization, any remaining copies must be destroyed or, at least so long as they may be lawfully possessed by the party from whom they were seized, returned along with the actual physical medium that may have been seized (such as a hard drive or computer).
United States v. Comprehensive Drug Testing, Inc., slip op. No. 05-10067, 17-18 (9th Cir. 2009)
The government relied on the “plain view” doctrine in seizing the records of other individuals. The “plain view” doctrine permits a police officer to gather evidence of a crime if it is in plain view. When an officer executes a warrant to look for evidence of theft, and comes across your stash of marijuana, you can be indicted for drug possession even though the warrant was for something else entirely. So, the government argued that when they went to seize the records for the 10 individuals, the rest of the records for everyone similarly came into “plain view”.
Judge Kozinski did not take too kindly to this argument:
Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been. See United States v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take everything back to the lab, have a good look around and see what we might stumble upon.
Id. at 13-14.
Now, in a move that is angering some privacy advocates, Solicitor General Elena Kagan has asked all 27 judges on the Ninth Circuit to reconsider its opinion. Kagan argued in a reconsideration brief last week that the Ninth Circuit’s opinion has put a halt to computer searches and should be overturned.
No one would argue that police need appropriate tools to conduct investigations in an electronic age. But in the words of Judge Mahan, one of the federal District Court judges who heard one of the initial government motions, “What ever happened to the Fourth Amendment? Was it . . . repealed somehow?” Permitting the government to seize anything and everything merely because it resides on a computer ignores the reasonable expectations of privacy that people now expect about their electronic files.
It also ignores the reams of personal information that people now place on computers. No longer do people keep separate diaries, separate file cabinets, separate folders for expenses — what used to be separate and distinct (and readily distinguishable for purposes of a warrant) are probably all now kept in the “My Documents” folder.
Defendants in police investigations should consider arguments that government agents executed a warrant too broadly — thereby excluding the evidence in question. All too often, counsel make the mistake of attacking the evidence before asking if the evidence is even admissible. With technology advancing so quickly, government overreaching will look different than it did in an age of file cabinets and paper boxes.