home *** CD-ROM | disk | FTP | other *** search
Text File | 1992-07-14 | 33.2 KB | 592 lines | [TEXT/EDIT] |
-
- ########## |
- ########## |
- ### | 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 [power] switch" is the relatively small amount of information in
- the internal memory (RAM) of a computer, and not information
- stored on an internal hard disc. Information is only contained in RAM
- when a computer is being actively operated, and then only information
- about the current application the computer is running.
- Thus, in order for a no-knock entry to be warranted, there must
- be credible evidence presented to the judicial officer either that (l) it is
- likely that the suspects have a device like a degausser by which data
- will be destroyed, or (2) the computer user will be using the computer
- for illegal purposes at the time of the search, e.g., when a warrant is
- sought at the moment a telephone tap demonstrates that computer
- user is in the act of using the computer to illegally access a computer
- database without authorization.
-
- C. Searches and seizures when the computer is used for electronic
- communications (e-mail).
-
- E-mail and other stored electronic communications are protected
- by the Electronic Communications Privacy Act, 18 U.S.C. 2701-2711. E-
- mail should thus be protected from search and seizure, unless there is
- probable cause to search and seize a specific electronic communication.
- Accordingly, if a search is likely to take place of a computer which
- provides an e-mail service to users, such as most BBSs, the affiant
- should inform the judicial officer of this possibility so that the judicial
- officer can establish procedures to ensure that the officers executing the
- warrant do not view e-mail for which no probable cause exists, and to
- ensure that the BBS computer is not seized unnecessarily as this will
- prevent the authorized access of users to their e-mail.
-
- D. Search vs. seizure
-
- We suggest that the commentary make a stronger distinction
- between the factors applicable to searches of computers, and those
- which demonstrate that the seizure itself of a computer or of discs is
- warranted. Because of this, we propose that several of the paragraphs
- be rearranged.
-
- E. Seizure of computer discs.
-
- Often, warrants have provided for the wholesale seizure of all
- computer discs, without any requirement that the officers executing the
- warrant review the data contained on each disc and seize copies only of
- relevant files. Because of the voluminous amount of materials that
- can be stored on a computer disc, such a seizure is often equivalent to a
- prohibited general search, as it permits the seizure of a great many files
- for which there is no probable cause to seize. The commentary does
- mention the possibility of establishing a procedure to ensure that not
- all files on a disc are seized, but we believe this should be further
- emphasized.
- We believe that that only in the situation where an entire
- organization is permeated with fraud or other misconduct is the
- wholesale seizure of computer discs appropriate. In all other
- circumstances, the search of the computer discs for seizable data should
- be conducted on the organization's premises. While this type of on-
- premises search may be time-consuming, the same exact procedure is
- followed when officers executing a warrant are searching through
- hard-copy files for seizable material. The judicial officer should allow
- the wholesale seizure of discs and a search off-premises of these discs
- for seizable material only if the affiant can present specific factors
- which demonstrate a necessity for an off-premises search. Further, if
- the judicial officer does permit an off-premises search of the computer
- discs, the warrant should require that such a search take place promptly
- (presumptively within a matter of days), and that the officers executing
- the warrant then promptly copy only the relevant parts of the discs and
- immediately return the originals to the owner or custodian.
- The citation to Voss v. Bergsgaard, 774 F.2d 402 (10th Cir. 1985),
- does not support the proposition it is cited for, in that it suggests the
- description there was sufficiently particular when in fact the Court held
- the warrant unconstitutionally overbroad.
-
- F. Seizure of computer where isolated information or records stored on
- the computer is the object of the search.
-
- While the seizure of a computer should be authorized when the
- computer is the instrumentality of a crime, in most other
- circumstances, where officials seek isolated information or records
- stored on the computer, seizure should not be authorized. In the first
- place, such a seizure would violate the particularity requirement as
- many non-seizable records would be seized. Secondly, the seizure may
- force a halt to legitimate business operations.
- In such circumstances, the judicial officer should require that the
- search of the computer hard drive take place at the organization's
- premises, and that the officers executing the warrant make copies only
- of the seizable files or data.
-
-
- III. Revisions to Business Record Guidelines and Guideline
- Commentary
-
- The original ABA Criminal Justice Section Suggested Guideline
- appeared in the form of a two-paragraph "Guideline" articulating the
- general principles underlying Constitutional searches and seizures of
- business records, followed by four pages of "Commentary" laying out
- the legal issues raised by business-record searches and seizures, with a
- particular focus on computer-based records. We prepared suggested
- modifications to the guideline and to the commentary which
- incorporates the discussion in Sections I and II.
-
- A. As to the guideline, the first two paragraphs read as follows:
-
- As is the case generally, the description for searches and seizures
- of business records should be so definite that it eliminates officer
- discretion in determining which items are covered, which are
- not, and when the search must come to an end. However,
- because it is not always possible to meet this standard, the
- particularity requirement may be applied with less rigidity than
- in other settings. The judicial officer, in assessing particularity,
- must determine if the description of the records (whether in
- writing or electronically maintained) is as specific as the
- circumstances allow -- or, in the alternative, whether the
- description is sufficiently specific to prevent the searching party
- >from unnecessarily examining non-relevant records in order to
- find the desired records.
-
- The particularity requirement is most likely to be met when (1)
- probable cause exists to seize all the items within a particular
- category, as when the entire enterprise is permeated with fraud
- or other misconduct, or (2) when the warrant sets out some
- objective standard, a limiting feature, that allows the officers to
- differentiate between what can and cannot be seized, or (3) when
- the application describes as fully as possible, in light of what the
- investigators know, what is to be seized, or (4) when the warrant
- spells out a method for executing the search that limits the
- exposure of non-relevant materials, such as appointing a third-
- party monitor.
-
- To this Guideline EFF proposed adding the following paragraph:
-
- "Warrants for computerized records must be drawn narrowly
- and with enough specificity to eliminate or minimize the researchers'
- discretion and intrusion into other materials stored on the computer.
- Seizure of the computer itself, while proper in the limited
- circumstances where it is the instrumentality of a crime (as when the
- computer is itself a tool directly used to commit telecommunications
- fraud), is generally not justified when the object of the search is
- evidence stored on the computer, particularly since seizure of the
- computer may force a legitimate business to cease operations. Where
- the computer being searched is used in the publication or
- communication of information, warrants must be drawn even more
- narrowly to avoid infringing on First Amendment rights of expression
- and association, and seizures of such computers may also violate First
- Amendment rights unless the computer is the instrumentality of a
- crime."
-
- In the commentary, the additions we suggested are underlined, and at
- any point where we suggest deleting some material we have indicated
- this by brackets ([]). In addition, our proposal rearranged several of the
- paragraphs:
-
- (Beginning after Second Paragraph on p. 39)
- When the records are electronically stored in a computer, as is
- frequently the situation, the same legal principles apply. [] In most
- respects, search and seizure issues in computer cases are like those in
- other criminal cases. J. McEWAN, DEDICATED COMPUTER CRIME
- UNITS 55-56 (189); CF. D. PARKER, COMPUTER CRIME: CRIMINAL
- JUSTICE RESOURCE MANUAL (1989).
- When computerized records are sought, they must be described,
- as in the case with written records, with enough specificity to eliminate
- or minimize the searchers' discretion as to what may be examined and
- seized. When the information sought can be made definite (e.g., a
- memorandum from sales manager Jones to field agent Smith, dated
- March 11, 1980, concerning the sale of certain chemicals), the
- particularity requirement is easily satisfied whether the record is in
- writing or electronically stored. If it is likely that the record of this
- document exists only in electronic form, the particular computer and
- storage media should be identified, and the affidavit should be clear
- that the searchers have the technical capacity to access the information.
- The need for particularity is heightened where the computer to
- be searched is used for a newspaper, magazine, electronic publishing or
- to operate an electronic bulletin board.5 There are "special restraints
- upon searches for and seizures of material arguably protected by the
- First Amendment." Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n.5
- (1970). Where the materials to be seized may be protected by the First
- Amendment, both the particularity requirement and the probable
- cause requirement must be met with "scrupulous exactitude." See, e.g.,
- Voss v. Bergsgaard, 774 F.2d 402, 405 (10th Cir. 1985) (quoting Stanford
- v. Texas, 379 U.S. 476, 485 (1965) and citing Zurcher v. Stanford Daily,
- 436 U.S. 547, 565 (1978).
- In addition, when a computer used to operate a BBS is searched,
- there is significant danger that First Amendment rights of association
- and statutory rights of privacy may be impinged by seizure of electronic
- mail (e-mail) or other private communications which have no relation
- to the alleged criminal activity justifying the search. Seizure and
- search of e-mail isgoverned by the procedures of the Electronic
- Communications Privacy Act, 18 U.S.C. 2701-2711. Similarly, seizure
- of material on a BBS meant for publication or dissemination which is
- not related to the alleged crime may violate First Amendment rights of
- free expression.
- When the affiant describes [] the records to be seized only in
- general terms, such as "books, letters, papers, memoranda, contracts,
- files, computer tape logs, computer operation manuals, and computer
- tape printouts," there is a likelihood that the particularity
- requirements have not been met. In such a circumstance, the judicial
- officer should question the affiant to see whether any additional
- limiting standards -- time period, authorship, transaction, or offense,
- for example -- can be established. The more limitations in the affidavit,
- the more likely that Fourth Amendment particularity exists.6
- In some instances, the affidavit may contemplate so extensive a
- seizure of computerized data that a successful search would cripple the
- business. Under these circumstances,the judicial officer should explore
- with the applicant the feasibility of copying or otherwise acquiring the
- information sought without depriving the owner or custodian of its
- use. Since the justification for a search is to gather evidence, not close a
- business, it is important that the seizure be no more intrusive than
- necessary. To this end, the judicial officer may require the applicant to
- demonstrate technical expertise or access to such.
- One troubling problem arises from the way computerized
- records are stored. Because computer discs have such a large storage
- capacity, it is common to store unrelated data on the same disc. This
- means that a seizure of an entire disc may involve substantial amounts
- of information that is not relevant to the inquiry. When the discs are
- maintained by an innocent third party, such as a large accounting firm,
- the invasion of privacy is compounded, since the relevant discs may
- also contain data for other clients of the firm. To protect the rights of
- these third parties, special procedures may be necessary.
- Similarly, the wholesale seizure of a large number of computer
- discs would appear to violate the particularity requirement, and be a
- prohibited general search, in a situation where the entire organization
- is not permeated with fraud or other misconduct.7 In such cases, the
- search of the computer discs for seizable items preferably should be
- conducted on the organization's premises. Wholesale removal of discs
- for off-premises searches should be authorized only if identifiable
- particular circumstances so mandate, and in such case the officers
- executing the warrant should promptly copy only relevant parts of the
- discs and promptly return the discs to the owner or custodian.
- To limit the scope of the seizure and the invasion of the rights of
- the third parties, and to protect the owner's rights (and the custodian as
- well), the judicial officer should consider (1) appointing an expert to
- accompany the law enforcement officers on the search to provide
- guidance to them in identifying the named items; (2) directing that all
- searches of discs for seizable items be conducted on the organization's
- premises, and (3) in situations where an on-premise search of the discs
- is not feasible because of specific reasons, establishing a procedure
- whereby the relevant parts of the disc may be promptly copied and then
- the original returned to the owner or custodian within a reasonable
- period of time, presumptively no longer than several days.
- The computer itself may be subject to seizure when it is an
- instrumentality for the commission of an offense, for example when it
- is employed to commit a host of illegal acts: software piracy,
- embezzlement, and telecommunications fraud are among these.8 For
- a fuller description of offenses committed with computers, see
- McEWAN, DEDICATED COMPUTER CRIME, Units 1-5, 38 (1989).
- Computers may also serve criminal enterprises by maintaining
- databases of, for example, drug distributions or customers for child
- pornography. In terms of establishing probable cause and particularity,
- the affidavit must, as is generally true, provide reason to believe that
- an offense has been committed, and that the object to be seized -- the
- computer -- is implicated. The computer should be identified as fully
- as possible, i.e., by manufacturer, model number and serial number to
- meet the particularity requirement.
- Seizure of the computer itself should not be authorized where
- information or records stored on the computer are the only object of
- the search. Such computer seizures and the attendant seizure of all
- data on the computer's hard drive would not meet the particularity
- requirement. In addition, as with the wholesale seizure of
- computerized records, the seizure of the computer will often make it
- impossible for a lawful business to continue operating. If the computer
- is used for publishing or communicating information, e.g., if it is used
- by a newspaper, publication or for running a BBS, seizure may violate
- the First Amendment, because the seizure may act as a prior restraint
- on future speech or may interfere with the rights of expression and
- association of the operator and users of the system.
- Because a computer is actually a system of several parts, the
- affidavit should specify what exactly is to be seized. An expert may be
- necessary in order to ensure a complete and precise listing.
- When the affidavit, of necessity, employs technical language to
- explain the offense involved, such as "patching a long distance phone
- call to avoid paying the toll," See Ottensmeyer v. Chesapeake and
- Potomac Tel. Co., 756 F.2d 986 (4th Cir. 1985), the affiant's credentials,
- training, and education in computer sciences should be set forth so that
- the judicial officer has a basis for evaluating the analysis and
- interpretation in the affidavit. In unusual situations when the judicial
- officer has difficulty comprehending the nature of the offense alleged,
- or questions the expertise of the affiant or the affiant's witnesses, the
- judicial officer can summon an expert witness to provide additional
- testimony. Ordinarily, however, the procedure is to require the affiant
- to further supplement the affidavit, or attempt to rewrite it to meet the
- judicial officer's objections. The judicial officer may also require an
- expert to accompany the affiant in order to insure that the seizable
- items are properly identified and removed in a reasonable manner to
- avoid injury to property, [] needless exposure of unrelated records, or
- infringement of First Amendment rights. In Ottensmeyer, 756 F.2d at
- 986, an expert accompanied the searching party. Cf. De Massa v.
- Nunez, 747 F.2d 1283 (9th Cir. 1984) (special master appointed to
- supervise the seizure of documents during execution of warrant at
- attorney's office); Forro Precision Inc. v. International Business
- Machine Corp., 673 F.2d 1045 (9th Cir. 1982) (discussing the role of an
- expert during the execution of the warrant).
- Because computer systems increasingly rely on complicated
- access procedures and may also have the capacity to destroy data when
- an unauthorized user attempts to access them there is an additional
- need for expertise. The judicial officer should make sure that the
- officers executing the warrant have the capacity to make the seizure
- without destroying data or damaging property unnecessarily, and thus
- may appoint an outside expert to monitor or supervise the execution of
- the warrant. The appointment of an expert provides added assurance
- that (1) there will not be an inadvertent interruption in the electric
- power during data manipulation by the officers that could result in the
- loss of information, (2) that if there is a hard disc drive, the heads on
- the drive will be "parked" before moving the system to avoid
- destroying stored information, (3) that when such equipment as
- telephone modems, auto-dialers, and printers are connected to the
- computer, they will be disconnected without loss of information, and
- (4) that the officers executing the search warrant will not
- unintentionally change data while collecting evidence. See generally,
- C. CONLY, ORGANIZING FOR COMPUTER CRIME INVESTIGATION
- AND PROSECUTION 22 (1989).
-
-
- IV. Conclusion.
-
- These suggestions were submitted to the ABA through Judge
- William R. McMahon of Ohio, who chairs the ABA, NCSCJ committee
- on Modern Technology and the Courts. It is the EFF's hope that these
- suggestions can also be used as a resource by state and federal
- legislatures, by state and federal judiciaries, and--perhaps most
- importantly--by the front-line law-enforcement officials and
- prosecutors whose job it is to integrate the enforcement of the law with
- the preservation of our civil liberties.
- 1The Fourth Amendment to the U.S. Constitution states that "The
- right of the people to be secure in their persons, houses, papers, and
- effects, against unreasonable searches and seizures, shall not be
- violated, and no Warrants shall issue, but upon probable cause,
- supported by Oath or affirmation, and particularly describing the
- place to be searched, and the persons or things to be seized."
- 2Sections II and III of this paper were originally researched and
- written for EFF by Nick Poser, Esq., and Terry Gross, Esq., of
- Rabinowitz, Boudin, Standard, Krinsky & Lieberman. Harvey
- Silverglate, Esq., and Sharon Beckman, Esq., of Silverglate & Good
- reviewed these sections and offered valuable suggestions and
- comments.
-
- 3D. Parker, Computer Crime: Criminal Justice Resource Manual
- (1989), page 68.
- 4 A "sample" search warrant in Conly, Organizing for Computer
- Crime Investigation and Prosecution includes the following
- language:
-
- "In the County of Baltimore, there is now property subject to
- seizure, such as computers, keyboards, central processing units,
- external and/or internal drives, internal and/or external
- storage devices such as magnetic tapes and/or disks, terminals
- and/or video display units and/or receiving devices and
- peripheral equipment such as, but not limited to, printers,
- automatic dialers, modems, acoustic couplers, and or [sic] direct
- line couplers, peripheral interface boards and connecting cables
- or ribbons, diaries, logs, and other records, correspondence,
- journals, ledgers memoranda [sic], computer software,
- programs and source documentation, computer logs, magnetic
- audio tapes and recorders used in the obtaining, maintenance,
- and or [sic] dissemination of information obtained from the
- official files and computers of the [sic] MCI
- Telecommunications Inc. and other evidence of the offense."
-
- Although clearly taken from a warrant drafted for a specific
- crime involving MCI, this language is frequently copied almost
- verbatim in warrants involving far different crimes. Moreover, the
- drafters, perhaps afraid that their language was not sufficiently
- inclusive, made sure to add the phrase "such as, but not limited to"
- in reference to what qualifies as a "peripheral" for the purposes of the
- warrant. One may wonder how such a broad description meets the
- "particularly describing" clause of the Fourth Amendment, or how it
- limits the discretion of the executing officer as to which property he
- or she will seize.
- 5 There is growing recognition that bulletin board systems (BBSs) are
- a form of press. See, e.g., An Electronic Soapbox: Computer Bulletin
- Boards and the First Amendment, 39 Fed. Com. L. J. 217, 240 (1988),
- citing Legi-Tech, Inc. v. Keiper, 766 F.2d 728, 734-36 (2d Cir. 1985).
- 6Two problems, unrelated to particularity, may arise with respect to
- the seizure of computerized data. [] First, in certain circumstances,
- affiants may have specific information that the suspects have devices
- by which computerized data may be rapidly destroyed, and in such
- cases affiants may seek permission to enter the premises without
- announcing their authority and purpose. Affiants may also seek such
- permission in cases where it is known that the suspect will be using
- the computer for illegal purposes at the time of the search, e.g., when
- a warrant is sought at the moment a telephone tap demonstrates that
- the computer user is in the act of illegally accessing a computer
- database over the telephone lines, as evidence of the crime could be
- lost if the computer user shuts off the computer. For an analysis of
- the standard for "no-knock" entries in business premises see
- Guideline 10.3 infra.
-
- The second problem relates to the time period in which the
- computerized data are stored. In addition, unlike written records,
- data internal to the system are not likely to be so maintained for long
- periods. Although computers commonly have book-length or longer
- storage capacity, the typical procedure is to transfer the data to
- external storage, typically in the form of a disc or tape. Given the
- practice, the judicial officer must evaluate the affidavit with care to
- ascertain the likelihood that the data is in the computer and has not
- been transferred to a different location or erased. If electronic
- communications are maintained on the computer, such as with
- computers operating electronic bulletin boards, reference must be
- made to the Electronic Communications Privacy Act, 18 U.S.C. 2701-
- 2711, and the affiants should inform the judicial officer, so that he can
- establish procedures to ensure that the privacy of these
- communications is protected, and that no communications are
- searched unless probable cause exists as to that communication.
- 7 Generic listings which would permit the seizure of virtually all
- computer related materials fail to meet the particularity requirement.
- See, e.g., Voss v. Bergsgaard, 774 F.2d 402, 407 (10th Cir. 1985), []
- (affidavit held insufficient which described the computer records and
- materials to be seized as follows: "One Alpha Micro computer
- processing unit, approximately four Alpha Micro computer
- terminals, computer printers, and computer manuals, logs, printout
- files, operating instructions, including coded and handwritten
- notations, and computer storage materials, including magnetic tapes,
- magnetic discs, floppy discs, programs and computer source
- documents"
- 8A computer is certainly "property" and hence theoretically might be
- subject to seizure if it is forfeitable pursuant to a specific statute
- authorizing such forfeiture, e.g., the Racketeer Influenced and
- Corrupt Organizations Act, 18 U.S.C. $ 1913. Because a computer is
- also a communications device much as a typewriter or printing press
- is, however, seizure of the computer raises First Amendment issues
- not present in other types of forfeitures. For this reason, the better
- procedure when dealing with an arguably forfeitable computer
- system is not to seize it, which raises First Amendment and prior-
- restraint problems, but to allow the government to proceed instead by
- subpoena or motion, where the delicate issues can be litigated
- without the prior restraint that seizure pendente lite would cause.
-
-
- --
- Mike Godwin, (617) 864-0665 | "You gotta put down the ducky
- mnemonic@eff.org | if you wanna play the saxophone."
- Electronic Frontier |
- Foundation |
-
-
-