Searches and Seizures in a Digital World

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Orin Kerr, Searches and Seizures in a Digital World Harvard Law Review, Vol. 119, pp.531-585, 2005

A forensic unit within a federal crime lab has been tasked with the investigation of an individual who is suspected of the manufacturing, transportation, and sale of illegal fireworks explosives. Upon responding to a fire at the suspect's house, firefighters discover 2.5 tons of explosives, and therefore, put out the fire from a distance. When investigators arrive on the scene, several networked computers, PDAs, cell phones, and laptops are found in an upstairs office. As junior investigators, they are unsure of how the fourth and fifth amendments will affect their investigation, search warrants, and the ultimate seizure of these devices. In addition, they are unsure of the standard operating procedures for processing computer evidence within the first and fourth amendments governance, so AB Investigative Services (ABIS) has been contracted to provide guidance in these areas.

The investigators are required to take into consideration several pertinent issues when ascertaining whether a government search of a computer requires a warrant. The primary issue that must be assessed entails inquiring as to whether or not the search violates a reasonable expectation of privacy, and if it violates a reasonable expectation of privacy if the search would still be permitted because the searching and seizing computers search falls within an exception to the warrant requirement. Citizens have guaranteed protections that are afforded to them under the Fourth Amendment, and the Amendment is a protection against unlawful search and seizures in which computers are generally protected against law enforcement accessing and viewing information stored in a computer if it would be prohibited from opening a closed container ...