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1994-07-17
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########## |
########## |
### | THE DOCUMENT CASE
####### |
####### | A collection of briefs, judgments
### | white papers, rulings, and references of
########## | moment to the issues of law and order on
########## | The Electronic Frontier
|
########## |
########## |
### | Document #: 2
####### | Title: Civil Liberties Implications of Computer
####### | Searches and Seizures: Some Proposed Guidelines for
### | Magistrates Who Issue Search Warrants
### | Archived/Published to the Net: August 7, 1991
### |
|
########## |
########## | Anonymous ftp archive maintained by
### | Mike Godwin and Chris Davis at
####### | The Electronic Frontier Foundation (eff.org)
####### |
### | These documents are in the "docs" subdirectory
### | of the ftp directory. Related files may be
### | found in the EFF and SJG subdirectories.
---------------------------------------------------------
Civil Liberties Implications of Computer Searches and
Seizures:
Some Proposed Guidelines for Magistrates Who Issue Search
Warrants
Submitted by:
Mitchell Kapor, B.A. Yale (1971), M.A. Beacon College (1978)
President, The Electronic Frontier Foundation
Mike Godwin, B.A. University of Texas at Austin (1980), J.D. (1990)
Staff Counsel, The Electronic Frontier Foundation
I. Introduction.
We are now about a decade and a half into the era of affordable
desktop computers. Yet for most people--and especially for the legal
community--the civil-liberties implications of this new consumer
technology have only barely begun to register. Only by acquiring a
knowledge of the new technology, of its uses, and of its importance to
traditional civil liberties can we guarantee the protection of those civil
liberties in the future.
Currently, the Electronic Frontier Foundation (EFF) is focusing
on two major aspects of this failure of the law-enforcement
community to fully incorporate civil-liberties awareness in its
investigations of computer-related crime:
1) When law enforcement officials lack understanding both of
the new technology and--just as important--of how it is normally used,
they simply cannot conduct the discretion-less, "particular" searches
and seizures required by the Fourth Amendment1 when those searches
and seizures involve computer equipment and data.
2) The electronic conferencing systems offered by computer-
based electronic bulletin-board systems (BBSs), commercial
information services, and noncommercial computer networks--which
may, to various degrees, be subject to law-enforcement searches and
seizures--have created an environment for some of the most vigorous
exercise of First Amendment prerogatives this nation has ever seen.
When law enforcement does not routinely recognize the First
Amendment significance of BBSs and other forms of electronic speech
and publishing, its broad searches and seizures can "chill" the free
exercise of those First Amendment rights.
This paper is adapted from the EFF's response to the American
Bar Association Criminal Justice Section's suggested guidelines for the
issuance of search warrants relating to business records (July 1990)2.
The guidelines seemed to be based in large part on J. McEwan,
Dedicated Computer Crime Units (1989), D. Parker, Computer Crime:
Criminal Justice Resource Manual (1989), and C. Conly, Organizing for
Computer Crime Investigation and Prosecution. Published by the
National Institute of Justice, all three publications were oriented
toward informing law enforcement of the kinds of abuses to which
computer technology potentially lends itself.
But while such a focus may be useful for prosecutors, who may
need to be brought up to speed on the technology, it is not a good focus
for magistrates, who must evaluate law enforcement's claims that
there is probable cause for particular searches and seizures in particular
cases. For example, it may be useful for prosecutors to know that "the
data in the storage device or media can be erased, replaced with other
data, hidden, encrypted, modified, misnamed, misrepresented,
physically destroyed, or otherwise made unusable."3 But this does not
mean that the magistrate should always find probable cause to believe
that a particular computer owner or operator has done so, and then
authorize a highly intrusive and disruptive seizure of a BBS so that
investigators can do a low-level search for hidden or encrypted data.
Similarly, the fact that a clever hobbyist can find criminal uses
for all sorts of equipment does not create probable cause to believe that
every piece of electronic property that could conceivably be used in any
type of computer crime -- or that could conceivably be evidence in
some type of computer crime -- should be seized in every
investigation.4
Moreover, the kind of exhaustive listing of potential computer-
crimes and crime techniques in these references, together with their
instructive but not particularly representative anecdotal evidence,
cannot help but give both law-enforcement agents and magistrates the
impression that BBSs and similar systems are likely to be used for
computer-related crimes of various sorts.
Our criticism of the original ABA Criminal Justice Section
suggested guidelines was basically threefold:
1) There was no guidance to the magistrate as to when the
computer or related equipment should not be seized, either because it
is not necessary as evidence or because such a seizure would intolerably
"chill" the lawful exercise of First Amendment rights or abridge a
property owner's Fourth Amendment rights.
2) There was inadequate recognition of the business or
individual computer owner's interest in continuing with lawful
commercial business, which might be hindered or halted by the seizure
of an expensive computer.
3) There was no effort to measure the actual likelihood that
investigators would find computers equipped with such justice-
obstructing measures as automatic-erasure software or "degausser"
boobytrap hardware, the presence of which might justify a "no-knock"
search and seizure, among other responses.
Section II of this paper, infra, contains the EFF's general
comments on the suggested guidelines. while Section III contains our
amended version of those guidelines.
II. Comments on Proposed Guidelines on Searches and Seizures
A. Searches and seizures of computers used for publishing or
electronic bulletin boards.
While the same legal principles apply to searches and seizures of
computerized records as to other records, when the search is of records
on a computer used for publishing or for operating an electronic
bulletin board system (BBS), the need for particularity is heightened
since the material to be searched may be protected by the First
Amendment. Particularity is also needed because First Amendment
rights of association and statutory rights of privacy may be impinged by
seizure of electronic mail or other private and third-party
correspondence.
Also, seizure of a computer used by a publication or for running
an electronic bulletin board system (BBS) may violate the First
Amendment by acting as a prior restraint on future speech and by
interfering with the rights of expression and association of the operator
and users of the system.
B. No-knock entries because of risk of destruction of data.
We believe the concern with possible destruction of data,
whether stored internally or externally, is overstated in the proposed
commentary. Such a concern can justify a "no-knock" entry only in
rare circumstances on a strong factual showing by law enforcement
personnel. First, we are not aware of any data showing that a device
like a degausser is frequently or commonly used to destroy evidence
during a search. Second, the only data that can be destroyed "at the flip
of a [