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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 #: 3 ####### | Title: Constitutional, legal, and ethical ####### | considerations for dealing with electronic ### | files in the age of cyberspace ### | 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. FEDERAL ENFORCEMENT 1991 Georgetown University Law Center Washington, D.C. May 16-17, 1991 CONSTITUTIONAL, LEGAL, AND ETHICAL CONSIDERATIONS FOR DEALING WITH ELECTRONIC FILES IN THE AGE OF CYBERSPACE Harvey A. Silverglate and Thomas C. Viles (FN1) Introduction -- The Reach of Cybernetic Technology. Without pause over the past decade, computers have transformed the physical organization of work in virtually every office in the nation. Businesses and law firms are spurning the use of paper to deliver and store information; instead, they have become dependent upon the use of computers and electronic systems for these functions. Now it is common to draft, revise, and edit all documents -- from briefs, to business proposals, to contracts -- without ever generating a paper "hard" copy until the document is ready for signature and submission. Furthermore, now it is possible for the personnel of a company or law firm to conduct all of their in-house discussions on a computer network which transmits and receives electronic mail ("e-mail"). E-mail can be used for written messages of great import as well as trivial asides and gossip. All such messages can be stored for later retrieval. Using networks and e-mail in tandem, teams of people in different offices can create, edit and complete lengthy written projects, literally without ever speaking to each other, or ever looking at paper copy. Communications between the office workplace and the outside world also can be conducted through the use of "networks" of computer systems. For example, the home office of a company can communicate with all of its affiliates and subsidiaries by the transmission of written messages between their respective computers ("nodes", in computer argot). In this way, all operations which can be performed simultaneously within one office, can be performed with equal facility among many offices, linked by the computer networks. Such systems also enable the attorney to stay in close contact with a client when it is necessary to work together on a project which requires close attention to detail. Computers and computer networks also promise to substantially and rapidly transform civil society. There exists a variety of computer networks, which enable academic institutions and scholars, to conduct global conferences on matters of common interest. Through e-mail and electronic bulletin boards, scholars and researchers can share experimental data and resources. See "Common Electronic Policy," The Economist, Feb. 16, 1991, at 24. Recently, the volume of academic message traffic in the United States has been increasing by 30-40% per month. Id. This session of Congress is considering a bill, introduced by Sen. Albert Gore, to spend over $1 billion in computer research, of which $400 million would be dedicated to the construction of a new National Research and Education Network (NREN), capable of handling computer traffic many times faster than the networks currently in existence -- analogous to a new electronic interstate highway system. See id.; Leccese, "Hackers under Attack: Crackdown Raises Questions about New Forms of Speech," Boston Phoenix, Sept. 7, 1990, at 8, 18. It is estimated that the entire project will cost $200 billion to complete. Leccese, supra, at 22. There also are smaller networks, too numerous to mention, which are not affiliated with any company, university, government agency, or other established entity. These independent networks function as forums for people all over the world to communicate with one another about matters of interest, from the sublime to the ridiculous. The largest computer networks in the United States, InterNet and UseNet, are each actually made up of 2,000 smaller networks. See, e.g., "Common Electronic Policy," supra, at 24; Costikyan, "Closing the Net," Reason, Jan. 1991, at 22. InterNet reportedly carries the electromagnetic impulses created by over 500 billion keystrokes per month. Leccese, supra, at 9. Approximately 5,000 bulletin boards operate over the networks. Costikyan, supra, at 22. One notable example of the use of computer networks for purely expressive purposes is the Whole Earth 'Lectronic Link ("WELL"), which provides political activists, small businessmen, rock and roll fans, and hundreds of other groupings of people (including lawyers) a forum in which to discuss matters of common interest. The WELL is a "node" capable of running hundreds of different multi-party conversations (or "conferences") simultaneously. Like an electronic town meeting, groups of people can communicate together on a multiplicity of bulletin boards, or users can send each other private messages by e-mail. (FN2) Other networks, utilizing more modest equipment, can maintain only one or two bulletin boards at a time. Everyone with a personal computer and access to a phoneline can participate in any of these open networks -- and, with only a little extra equipment, can start a new bulletin board. Searches and Seizures Involving Cybernetic Machines. Over the past 15 months, the following incidents have come to our attention: *On January 24, 1990, a handful of Secret Service agents, accompanied by two employees of the local telephone company, seized the equipment of a twenty year old man living with his mother in New York. From his bedroom, they seized a Commodore 128 computer, 200 floppy disks, a telephone answering machine, cassette-playing radio, and all of his musical cassette tapes. Apparently, the Secret Service was searching for evidence of alleged "computer crimes." See Dibbell, "On Line and Out of Bounds", Village Voice, July 24, 1990, at 27; Jahnke, "The Cops Come to Cyberspace," Boston Magazine, November 1990, at 140; J. Barlow, Crime and Puzzlement 8P9 (1990) According to some reports, this raid (and a few other raids which were carried out simultaneously) marked the beginning of the so-called "Operation Sun Devil," described as a "two-year Secret Service investigation which involved 150 federal agents, numerous local and state law enforcement agencies, and the combined security resources" of numerous private telecommunications companies.(FN3) Barlow, supra, at 9; see also "Crime of the Century," Personal Computer World, Mar. 1991, at 187; Zachary, "Group to Defend Civil Rights of Hackers Founded by Computer Industry Pioneer," Wall Street Journal, July 11, 1990, at B4; Schatz, "Foundation to Defend PC Users," Washington Post, July 11, 1990, at B8; Edelman, "Kapor for the Defense in Computer Field," Boston Globe, July 11, 1990, at 33; "Kapor Forms Group to Aid Hackers," USA Today, July 11, 1990, at 2B. *On March 1, 1990 the Secret Service raided the offices of Steve Jackson Games, a small Austin start-up company which designed and manufactured fantasy role-playing books and games. The Secret Service seized the company's three computer systems, two laser printers, miscellaneous hardware, papers, back-up disks, and a single pocket calculator. The company's plans and galleys for a new role-playing game, GURPS Cyberpunk(FN4), also were seized, after an agent opined that the game was a handbook for computer crime. (The format of Steve Jackson's games is similar to that of "Dungeons and Dragons"; GURPS Cyberpunk consists of a lengthy instruction book plus general information about the game. In fact, all of the company's games consist solely of printed matter. The company was not in the business of manufacturing any software.) The Secret Service apparently suspected that an employee of Steve Jackson Games had participated in unlawful activity on the employee's own home computer system. At no time was the owner or any other employee of Steve Jackson Games considered a suspect. Because the seizure of the computers thoroughly disrupted Steve Jackson's business, half of the company's employees had to be laid off. It was months before the company was even able to gain access to its equipment, which held the manuscript for the about-to-be-published GURPS Cyberpunk game. Some of the seized equipment ran a bulletin board which was maintained for the purpose of swapping new role-playing game ideas with similarly interested people elsewhere in the United States. The board, which users gave the tongue-in-cheek title of "The Illuminati," ceased to operate. See Levy, "Search and Destroy: What Happened when the Secret Service Visited Steve Jackson Games," MacWorld, March 1991, at 51, 52; Costikyan, "Closing the Net," Reason, Jan. 1991, at 22P24; Lewis, "Can Invaders Be Stopped but Civil Liberties Upheld?," New York Times, Sept. 9, 1990, at 12; Zachary, supra, at B4; O'Connor, "$275,000 Donated for Hackers," San Jose Mercury News, July 11, 1990, at 1F; "Computer Foundation Planned," San Francisco Chronicle, July 11, 1990, at C4; Edelman, supra, at 39; "Kapor Forms Group to Aid Hackers," supra, at 2B. *On the day of the Steve Jackson Games raid, the employee's home was searched. His computer equipment, software, a quantity of TV cable wire, and telephone parts were seized and carted away. Also seized was an arcade version of Pac Man. To date, the employee has not been charged with any crime. See Lewis, supra, at 12; Dibbell, supra, at 30. *Two years ago, a computer hobbyist running a small bulletin board service out of Lockport, Illinois, discovered that his bulletin board had been used to transmit a telephone company document. He promptly notified the telephone company, and cooperated fully and voluntarily with law enforcement authorities in the investigation of what he had reported. He probably regrets that now, for the Secret Service agents, armed with a warrant, later seized all of the man's computer equipment, in order to secure evidence in their investigation of the transfer of telephone codes. Because of the seizure, his bulletin board was shut down. See, e.g., Costikyan, supra, at 24; Leccese, supra, at 21; Goldstein, Special Issue, "2600 magazine's commentary on Operation Sun Devil," 1 Computer Underground Digest #1.10 (May 17, 1990) (available on the WELL, April 12, 1991); J. Barlow, supra, at 11-12. *A college student in Missouri published a computer magazine entitled Phrack, which he distributed over the networks to about 1,300 people. He found a phone company document on a publicly accessible computer bulletin board, and he reprinted it in his magazine. Although the government never alleged that he was involved in taking the document, his computer system was seized, and he was charged with interstate transportation of stolen property. The computer seizure, ostensibly occasioned by his republication of a stolen document, effectively restrained him from publishing any more issues of Phrack.(FN5) Charges against the young man later were quietly dropped, when it was discovered that the "stolen property" -- the phone company document -- was available from the phone company itself, and that it cost somewhat less that $20. But the entire episode must have dampened his zeal to publish, for the magazine no longer appears. See "Crime of the Century," supra, at 188; Costikyan, supra, at 23-25; Levy, supra, at 52, 54; "United States v. Zod," The Economist, Sept. 7, 1990, at 23; Leccese, supra, at 20; J. Barlow, supra, at 10-11; Zachary, supra, at B4; Edelman, supra, at 39; "Kapor Forms Group to Aid Hackers," supra, at 2B; "Computer Foundation Planned," supra, at C4; O'Connor, supra, at 8F; Markoff, "U.S. Drops Computer Case against Student," New York Times, July 28, 1990, at 9. *On May 8, 1990(FN6), as part of "Operation Sun Devil," another bulletin board, called "RIPCO," was raided. All of the equipment necessary to run the bulletin board was seized. The RIPCO board had operated since 1983, and it had accumulated extensive text files which were accessible to its 600 users. No arrests were made, nor have any charges been filed against the operators. But the board was shut down. See, e.g., Thomas & Meyer, "Update on Ripco BBS and Dr. Ripco," 1 Computer Underground Digest, #1.26, (Aug. 2, 1990) (available on the WELL, Apr. 12, 1991). *Also frequent are instances where computers are seized incident to an unrelated arrest. For example, on February 28, 1991, following an arrest on charges of rape and battery, the Massachusetts state and local police seized the suspect's computer equipment. The suspect reportedly operated a 650-subscriber bulletin board called "BEN," which is described as "geared largely to a gay/leather/S&M crowd." It is not clear what the board's seizure is supposed to have accomplished, but the board is now shut down, and the identities and messages of its users are in the hands of the police. See Boyce, "Police Confiscate SM Files," Gay Community News, Mar. 11-17, 1991, at 3.(FN7) The Gulf between Law Enforcement Procedure and the Constitution. This small sampling of cases demonstrates the unequivocal determination of the government to conduct investigative seizures of entire computer systems, even when only a few files may be relevant to an investigation or prosecution. Such seizures can have immediate and catastrophic effects on computer users who have no connection to the conduct being investigated. Offices cease to function; businesses can no longer operate or service customers; bulletin boards and other forums are shut down. As discussed below, it is no exaggeration to compare such searches and seizures to the writs of assistance and general warrants which the Constitution's framers found so odious, and which the Fourth Amendment was designed to prevent. Law enforcement agencies explain this practice by referring to problems inherent in searching not only computers but any other storage system: The searching officers cannot know precisely which part of the system contains the data they seek. Furthermore, with the right sort of elegant technology, computer files can be deleted at the push of a button. According to this view, prudence suggests that the computer search will be futile, unless the entire system is seized and removed, so that the contents can be examined at leisure. That means, of course, the government's leisure, not the user's. It is cold comfort that the Fourth Amendment tolerates searches of the property of people not suspected of criminal conduct, and that it even permits searches in entirely noncriminal contexts.(FN8) People who are the victims of such a seizure are naturally outraged. Where the object of the seizure is a bulletin board, potentially thousands of users are deprived of a forum in which to communicate, and their words (recorded in the computer system housing the bulletin board) now are open to government scrutiny. The seizure of a small business's computer system, especially one involved in sales or research and development, effectively destroys the business. In larger companies, when the investigation into the operations of one department or subsidiary leads to a computer seizure, the operations of the entire company can be crippled or frozen. And, of course, the seizure of one or two pieces of computer equipment in a law office effectively can constitute the seizure of all of the office's client and billing files. The practice of conducting these searches and seizures represents the immense gulf that exists between law enforcement personnel and magistrates, on the one hand, and sophisticated computer users, on the other. As Mitchell Kapor and Michael Godwin point out in "Civil Liberties Implications of Computer Searches and Seizures: Some Proposed Guidelines for Magistrates who Issue Search Warrants," law enforcement personnel who conduct computer seizures seem to focus exclusively on what *could* go wrong in a computer-related situation.(FN9) The appropriate question under the Fourth Amendment, which every magistrate should ask before issuing a warrant, is not what could go wrong, but instead for what adverse events probable cause has been shown. 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." 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 [computer bulletin board system] so that investigators can do a low-level search for hidden or encrypted data. Reprinted in Proceedings: Fourth Annual Virus & Security Conference 426, 428 (1991), quoting D. Parker, Computer Crime: Criminal Justice Resource Manual, at 68 (1989). What seems to have happened is that prosecutors and law enforcement agents, in their zeal to avoid even the possibility that evidence might be lost, have gone overboard and undertaken general searches. As noted, the seizure of an entire computer system is equivalent to seizing all of a person's hard copy files, or (in the case of a bulletin board system or desktop publisher) seizing an entire printing press. Writs of Assistance, General Searches, and the Fourth Amendment. Even people of the so-called "framer's intent" school of constitutional interpretation must concede that such seizures go too far. "The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new." Marcus v. Search Warrant, 367 U.S. 717, 724 (1961). The Writs of Assistance, which the British Crown issued to authorize searches for, and seizures of, unlicensed publications, were an abomination to the American colonists. See generally Stanford v. Texas, 379 U.S. 476, 481-82 (1965). James Otis described the general search warrants used to enforce as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book." Id. at 481, citing Boyd v. United States, 116 U.S. 616, 625 (1886). The Writs authorized the search of anyone connected with an unlawful or unlicensed publication, and the seizure of all of the papers and documents of such people. The Fourth Amendment has roots in the cases of Wilkes v. Wood, 19 How. St. Tr. 1153 (1763), and Entick v. Carrington, 19 How. St. Tr. 1029 (1765), in which free-thinking pamphleteers were arrested, and all of their books and papers seized, because of their alleged publication of seditious libels. The Wilkes case ended in liberty's favor, when the Court of Common Pleas ordered the Secretary of State to pay Wilkes damages. The Entick case resulted in Lord Camden's declaration that the power to issue Writs of Assistance, and to conduct general searches, was an unlawful offense to civilized notions of justice. In Lord Camden's words, this power so assumed by the Secretary of State is an execution upon all of the party's papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper. 19 How. St. Tr. at 1064, quoted in Stanford, supra, 379 U.S. 484. Parliament later acted legislatively to declare general warrants to be unlawful. Stanford, supra, 379 U.S. at 484, citing 16 Hansard's Parliamentary History of England, at 207. The Fourth Amendment was adopted a generation after Wilkes and Entick, while the memory of the Crown's unrestrained searches of colonial businesses for statutory violations was fresh. The amendment provides that all warrants shall "particularly describ[e] the place to be searched, and the ... things to be seized." In view of the Fourth Amendment's history, and its explicit language, it is beyond serious dispute that the Constitution prohibits wide-ranging exploratory searches. Neither can the police rummage through a person's belongings sua sponte, nor can a magistrate issue a warrant permitting a general and unlimited search. E.g., Steagald v. United States, 451 U.S. 204, 220 (1980); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325-26 (1979); see also Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13 (1978); Roaden v. Kentucky, 413 U.S. 496 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)("[T]he specific evil is the 'general warrant' abhorred by the colonists, and the problem is not that of an intrusion per se, but of a general, explanatory rummaging in a person's belongings."); Stanford, supra, 379 U.S. at 485-86; Marcus, supra, 367 U.S. at 728-29. Instead, the Fourth Amendment plainly directs that a search shall be lawful only when it is directed to particular items for which probable cause is demonstrable. The courts recognize that the First and Fourth Amendments grew from the same historical source, for the struggle for press freedom was energized by the struggle against the license to print, and against the prior restraints imposed by the Crown to enforce the license. In the Supreme Court's words, The struggle for the freedom of the press was primarily directed against the power of the licensor ... And the liberty of the press became initially a right to publish "without a license what formerly could be published only with one." While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of that constitutional provision. Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). The Supreme Court commands that special care be taken when authorizing or reviewing a search involving any entity engaged in the publication or dissemination of ideas. "Freedom of the press" long has been interpreted broadly to protect not only newspapers publishers and pamphleteers, e.g., Lovell, supra, 303 U.S. at 452, but also motion pictures, Roaden, supra, 413 U.S. 496; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952); United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948), and even computer bulletin boards, Legi-Tech v. Keiper, 766 F.2d 728, 734-35 (2d Cir. 1985), from prior restraints and general searches. In order to avoid prior restraints on speech, the particularity requirement of the Fourth Amendment "is to be accorded the most scrupulous exactitude when the `things [to be seized]' are books, and the basis for their seizure is the ideas which they contain." Stanford, supra, 379 U.S.at 485, citing Marcus, supra, 367 U.S. 717; A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964). The Need for Heightened Awareness and New Limiting Rules. The seizure of a computer's hard drive is the functional equivalent of the seizure of all of the files in a small to medium size law office, or all of the records of a small to medium size business. After the seizure is accomplished, law enforcement personnel are able to read virtually every word that had been printed in an attorney's files, or to control the continued life of a business. It is critical that rules and protocols be developed so that the scope of computer searches and seizures are minimized. Law enforcement professionals and attorneys must begin to realize that just because it is convenient to seize a computer system (because the system can consist of no more than a half dozen pieces of equipment), it is not necessarily constitutional. Such seizures are tantamount to the general searches and seizures which were generally regarded as the patent abuses of tyranny when the Constitution was drafted. Judges and magistrates who issue computer search warrants must become more sensitive to the constitutional problems posed by authorizing the seizure of entire computer systems. Because such warrants are tantamount to the Writs of Assistance (which even the English courts under George III condemned a generation before the United States Constitution was adopted) the courts should be especially aware not only of Fourth Amendment interests, but also of the First Amendment interests, when a bulletin board or network equipment is seized. The Constitution imposes "special restraints upon searches for and seizures of material arguably protected by the First Amendment." Lo-Ji Sales, supra, 442 U.S. at 326 n.5.(FN10) We all need to think more critically when dealing with the notion that, unless entire computer systems are seized, electronic data will be altered or destroyed. Magistrates should also require that parties seeking a warrant similarly should demonstrate the probability that the owner of the system is capable and willing to obliterate data within the system during the short interval between presentation of the warrant and commencement of the search. To seize an entire computer system for the sake of a couple of documents contained therein is inefficient, overly intrusive, and potentially disastrous for the owner of the system. A better course would be to have agents sophisticated in the use of computer equipment search the system on-site, and to copy onto a disk the documents which motivated the application for a warrant in the first place. Before authorizing the seizure of entire computer systems, magistrates should require that the applicant demonstrate probable cause for the belief that the entire system is either completely dedicated to illegal activity, or permeated with evidence of unlawful conduct. Wherever possible, the warrant should authorize the seizure only of the relevant documents; if the documents cannot be identified, then just the disks or tapes containing the relevant documents should be taken. Too often there have been cases where a computer operator's entire collection of disks has been seized. There is no difference between this and ransacking a library. Law enforcement professionals and magistrates also should be aware of the fact that, where there are no disks, and the document to be seized is likely to be found in the computer's central data storage (or "hard disk"), the document easily can be copied onto a portable (or "floppy") disk. The need to show authenticity should not justify the seizure of a computer when disk or tape copies can be made. A document thus retrieved still would be admissible evidence under Rule 1001(1), which defines "writings" and "recordings" broadly to include "letters, words, or numbers, or theirequivalent, set down by . . . magnetic impulse, mechanical or electronic recording, or other form of data compilation."(FN11) It is technologically possible that a computer system is rigged with a "booby trap or degausser," which is designed to obliterate data in a computer when there has been unauthorized tampering. This possibility can be invoked to justify all sorts of Fourth Amendment mischief, including wholesale seizure and "no-knock" warrants. In fact, it is highly unlikely that a computer system would be fitted with a such booby trap, and this factor should not be regarded as common, but as highly exceptional as the "Mission: Impossible" tape which self-destructs in five seconds. When an officer posits a potential booby trap to justify a highly intrusive and disruptive search and seizure, the courts should be prepared to impose a heavy burden of proof on law enforcement officials who claim that such devices are in place; law enforcement officials should be prepared to meet such a burden. It is worth noting, however, that in certain situations the computer system itself is the means or instrumentality of a crime. Using a network, software can be stolen, funds can be embezzled, and various wire frauds can occur. See, e.g., J. McEwen, Dedicated Computer Crime Units 1-5 (National Institute of Justice, 1989). But it is critical that magistrates and law enforcement officials distinguish investigations where the computer itself has been used to commit a crime, and where the computer system merely is a channel of communication, like a telephone. To seize a computer, because information related to a crime was merely communicated through it, is tantamount to seizing telephones because two co-conspirators spoke to each other over it. Proof of the crime can be gotten by less intrusive means, and innocent third parties still may need to use those telephones. Law Enforcement and the Particularity Requirement. It is well established that search warrants should leave nothing to the discretion of the executing officer; indiscriminate searches are constitutionally intolerable. Indeed, any search warrant which authorizes the search and seizure of items beyond those for which probable cause has been demonstrated, is constitutionally defective. See, e.g., Lo-Ji Sales, supra, 442 U.S. 319; Voss v. Bergsgaard, 774 F.2d 402, 404-05 (10th Cir. 1985)(warrant invalid where most of it authorized rummaging through files and records for evidence pertaining to any federal crime, under the guise of a criminal conspiracy investigation). It therefore is troubling that law enforcement officers have so frequently resorted to the general seizures of computer systems, which contain a myriad of different files, when only particular files or categories of files are relevant. Even more disturbing is the apparent insouciance with which some law enforcement officers regard the seizure of entire systems of computer equipment; to some officers, the particularity clause of the Fourth Amendment is not even relevant. Illustrative is this statement by a Special Agent at the FBI Academy: [The Fourth Amendment "particularity"] provision requires that a warrant authorize only a search of a specific place for specific named items. Coupled with the probable cause requirement, this provision prevents general searches by insuring that the warrant describes a discreet, defined place to be searched, describes only items connected with criminal activity for which probable cause has been established, and describes the items so definitely that it removes from an officer executing the warrant the discretion of determining which items are covered by the warrant and which are not. It also provides a signal of when a search is at an end, that is, when all items named in the warrant have been located and seized or when all possible hiding places for items not located have been explored. Since the "place to be searched" portion of the particularity requirement has no special impact on computer searches, it will not be discussed. Sauls, "Raiding the Computer Room: Fourth Amendment Considerations (Part I), 55 FBI Law Enforcement Bulletin 25, 29 (May 1986) (emphasis added). Similarly, another Department of Justice publication sets forth, with apparent approval, the following wide-ranging language in a "sample" search warrant: In the county of Baltimore, there is now property subject to seizure, as such 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 unit 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. See, C. Connolly, Organizing for Computer Crime Investigation and Prosecution at 81 (National Institute of Justice, 1989). When computers are the object of the search, we see again the zeal of the special investigating judges in the Court of High Commission under King James I -- whose mission was "to inquire and search for . . . all heretical, schismatical and seditious books, libels, and writings, and all other books, pamphlets and portraitures offensive to the state or set forth without sufficient and lawful authority in that behalf . . . and their printing-presses themselves likewise to seize and so to order and dispose of them . . . as they may not have to serve or be employed for any such lawful use," Marcus, supra, 367 U.S. at 725-26, citing Pat. Roll, 9, Jac. I, Pt. 18 & Jac. II, Pt. 15. The electronic bulletin board appropriately should be viewed not as a weapon or burglary tool, but instead as a First Amendment-protected institution, like the newspaper or any public forum.(FN12) See generally, Jensen, An Electronic Soap Box:Computer Bulletin Boards and the First Amendment, 39 Fed.Communications L.J. 217, 235P43, and authorities cited therein. In all cases, consideration should be given to training technologically sophisticated law enforcement officers, and having them available to execute the computer searches. Furthermore, magistrates should consider appointing similarly knowledgeable special masters to supervise such searches. Such roles can be assumed by people who, though technically literate, are not officers of the court or law enforcement agency. See, e.g., Forro Precision, Inc. v. International Business Machines Corp., 673 F.2d 1045, 1054 (9th Cir. 1982)(police search assisted by IBM employee because warrants required that specific technical documents be identified); see also, DeMassa v. Nunez, 747 F.2d 1283, 1285 (9th Cir. 1984)(court-appointed special master supervised search of law office files, permitted seizure only of documents within scope of warrant). Of course, the court should clearly explain to any appointed special master the proper limits of the master's role in the search. See, e.g., Lo-Ji Sales, supra, 442 U.S. at 321-24. Privacy Rights of Third Parties and Statutory Provisions. In addition to the Constitution's basic guarantees, Congress and various state legislatures have enacted additional privacy protections for people who use computers, and for people whose information is stored in them. Magistrates and law enforcement officials should be cognizant of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. 2701-2711, which protects the privacy of various electronic communications, including e-mail. See, Kapor & Godwin, supra, at 431-32. Under the ECPA, a piece of electronic mail cannot be reviewed or seized unless the law governing warrants has been strictly complied with. See 18 U.S.C. 2703(a). The language of this section seems to require that an order for the disclosure of electronic mail must particularly describe the communications to be sought; general rummaging and reviewing is not permitted. Id.(FN13) Also important is the First Amendment Privacy Protection Act ("PPA"), 42 U.S.C. 2000aa et seq., which was enacted in response to the Supreme Court's holding in Zurcher v. Stanford Daily, 436 U.S. 547 (1978). Protected under the PPA are documents and materials "possessed in connection with a purpose to disseminate to the public a newspaper, book, broadcast or similar form of public communication," 42 U.S.C. 2000aa(a), which would seem to embrace electronic bulletin boards and publicly-accessible computer networks. The PPA operates to prohibit blanket searches and seizures of such entities, unless there exists "probable cause to believe that the person possessing the materials has committed a criminal offense to which the materials relate," and such criminal offense does not consist of "the receipt, possession, communication or withholding of such materials." 42 U.S.C. 2000aa(a)(1). The practical effect of the PPA would seem to be to strictly limit wholesale computer seizures where the systems are used for bulletin boards or other general communications. In such situations, a seizure is appropriate only where the system's operators are directly implicated in unlawful activity. However, where the system has been used as a conduit by others who are criminally motivated, but the operator is not involved, the PPA would seem to require that no search take place, but that instead a subpoena be issued for the relevant information. It also is worth noting that the Attorney General has issued guidelines under the PPA, governing the execution of search warrants where highly confidential or personal information relating to innocent third parties might fall into the hands of law enforcement authorities. See 28 C.F.R., Part 59. Under the guidelines, federal officials should "not use search and seizure to obtain documentary materials in the possession of disinterested third parties unless reliance on alternative means would substantially jeopardize their availability. . . or usefulness," where less obtrusive means of obtaining such materials are available. 28 C.F.R. 59.1, 59.4(a)(1). Under the PPA guidelines, "documentary materials" include "materials upon which information is electronically or magnetically recorded." 28 C.F.R. 59.2(c). Sensitive to the potential for violating the privacy rights of innocent third parties, the Attorney General's guidelines impose strict controls over search warrants executed upon records in the custody of physicians, lawyers, or the clergy. 28 C.F.R. 29.4(b)(4). This heightened sensitivity to the privacy rights of innocent third parties is reasonable, and should be extended to situations where third parties other than patients, clients, and penitents are affected by the documentary search and seizure. Considering the high volume of communications which occur over many computer systems, and the potential chilling effect that the government seizure of such communications will have, magistrates and prosecutors appropriately should impose similar limiting rules for computer seizures. Ethical and Practical Considerations for Attorneys. Private defense attorneys and in-house corporate counsel also can play a useful role in controlling the unbridled search and seizure of computers. They should become aware of how vulnerable their clients' computer systems are to such searches, and of the potentially disastrous consequences which would follow the seizure of a computer system. They should be prepared to move for the return of seized computer equipment under Rule 41(e), Fed.R.Crim.P., on the ground, inter alia, that the particularity clause of the Fourth Amendment has been violated by such an overbroad search and seizure. For the same reason, if the client is indicted, computer searches and seizures provide fertile grounds for suppression motions.(FN14) Short of such disasters, however, counsel should be aware of some of the ethical problems which computer filekeeping and communications pose. Both the Constitution and the ethical precepts of the legal profession protect client secrets. Although some details of the attorney-client relationship may not be privileged -- for example, the mere fact that the relationship exists, the identity of the client, and the legal fees paid -- communications between counsel and client are absolutely privileged, and attorney work-product enjoys presumptive protection from disclosure. The Code of Professional Responsibility prohibits the attorney from revealing either "confidences" which a client has revealed for the purpose of obtaining legal services, or "secrets" of the client's affairs which, although not useful for the purpose of representation, might embarrass the client or hurt business interests. See DR 4-101(A), (B). The attorney-client privilege, limited by law to communications for the purpose of seeking or rendering legal advice, is "more limited than the ethical obligation of a lawyer to guard the confidences and the secrets of his client." EC 4-4. The code similarly imposes on the attorney the duty to exercise reasonable care to prevent employees, associates and all others from disclosing client secrets and confidences. See DR 4-101(D). The Model Rules of Professional Conduct also are protective of client confidences. Rule 1.1 enjoins the lawyer not to reveal "information relating to the representation of a client." Although this language seems to eliminate from the attorney's duties the protection of information which, though not essential to representation, may prejudice the client's non-legal interests, the Comment to Rule 1.1 seems to rehabilitate the protection of non-legal client secrets. The Comment explains that attorney-client confidentiality is necessary for the client "to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter." (Emphasis added.) The Comment distinguishes Rule 1.6 from DR 4-101, and it holds that the Rule's application to information "relating to the representation" reaches morebroadly than the Code's protection of information "gained in" the relationship which the client has requested to be kept confidential. In-house counsel should be certain that confidential legal files are segregated from general corporate files. Other attorneys should make sure that their clients similarly segregate such files on separate disks. If possible, and especially when a particularly sensitive investigation is underway, in-house counsel should detach its computer system from the network upon which the rest of the company's computers operate. Clients should be instructed to store privileged information to "floppy" disks, and that such information should be erased completely from the computer's memory or "hard" disks. Counsel need to be prepared to convince a court that certain communications were made in complete confidence. See, e.g., S.E.C. v. Gulf & Western Industries, Inc., 518 F. Supp. 675 (D.D.C. 1981); In re Ampicillin Antitrust Litigation, 81 F.R.D. 377 (D.D.C. 1978). It will be harder to make this showing if it should turn out that privileged files were accessible to anyone in the corporation. Instead, the expectation of confidentiality should be clearly apparent from the demonstrable conduct of the party asserting a privilege. Gulf & Western, supra, 518 F.Supp. at 682; see also, Upjohn Co. v. United States, 449 U.S. 383, 387 (1981) (counsel should be able to show that employee was aware that communications were for the purpose of legal advice when made). Similarly, counsel should make sure that employees understand that confidential communications should not be placed over a generally accessible office computer network, and that legal communications should be removed and segregated from parts of the system which are generally accessible. Under certain circumstances, when privileged documents are left in computer files where others can view them, confidentiality may have been constructively waived. "[O]nce the privilege exists the corporate client must be diligent in its intra-corporate confidentiality." J. Gergacz, Attorney-Corporate Client Privilege 3.02[2][d][ii](1987) (FN15) There is only so much counsel can do, however, to minimize the possibility that privileged information is seized. Obviously, it would be wasteful to restructure an entire filing system in seemingly paranoid anticipation of a general search. But counsel should insure that the client takes deliberate and painstaking precautions to keep its electronically recorded confidential communications from prying eyes within the office, as well as from without. It is important to note that the law is far from settled on the issue of whether privileged materials which have been abandoned or stolen lose their protective character. Older authorities hold that all involuntary disclosures of information remove the privilege. 8 Wigmore, Evidence, sec. 2326 (McNaughton Rev. Ed. 1961). The modern view is to the contrary. See, e.g., J. Gergacz, supra, 5.03[2][e]; Suburban Sew 'N Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254, 260 (N.D.Ill. 1981); see also Bower v. Weisman, 669 F. Supp. 602, 606 (S.D.N.Y. 1987). But it is safe to say that it does not help a client's case to have filed confidential communications promiscuously in the company's computer network. And disclosure of communications beyond employees who "need to know" may constitute a waiver of confidentiality. See, J. Gergacz, supra, at 5.03[3], citing James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 142 (D.Del. 1982). As John Gergacz observes, Courts which have strongly emphasized the confidentiality characterization of the waiver doctrine may be less amenable to corporate policies that do not strongly limit access by non-essential employees to the privileged communications. Even so, corporate counsel should take care in preserving the confidentiality of the privileged communications within the organization. Privileged documents should be circulated only to those corporate members who need to know. The broader the circulation list, the less distinguishable corporate treatment of confidential communications will be from general firm memos. In addition, . . . separate files should be kept for privileged communications and those that are circulated should be kept in separately marked . . . folders so as to minimize commingling of privileged documents with nonPprivileged, even within the same filing system. Finally, the corporation should have and follow a policy of authorized and unauthorized access to various files. J. Gergacz Attorney-Corporate Client Privilege, supra, 5.03[3]. Conclusion. This suggestive (but far from exhaustive) review is a plea to judges and magistrates, prosecutors and defense attorneys, in-house and independent counsel, who are or may be involved in the criminal process -- to study the constitutional, ethical, strategic, and business implications of the new computer technology more closely. Computers have essentially miniaturized the office place; but they pose the concomitant danger of the revival of the Writ of Assistance. True, computers enable us to easily store, and more easily to retrieve, a wide variety of information using a very small "file cabinet"; but one should resist the temptation to pack everything into one system. The courts and prosecutors should be sensitive to how close indiscriminate computer seizures come to the police practices which precipitated a revolution. And counsel should be sensitive to the possibility that the poorly considered use of computer technology can erode the client's constitutional rights and privileges. We should be alert to the computer's dangers as well as to its undeniable convenience and other benefits. FN1. Mr. Silverglate is a partner, and Mr. Viles an associate, at the Boston (Mass.) law firm of Silverglate & Good. The authors are counsel to the Electronic Frontier Foundation (EFF), which is described in this paper, and which is involved in a few of the matters discussed here. The authors gratefully acknowledge the help of Mitchell Kapor and Michael Godwin of EFF, as well as of associate Sharon Beckman and legal assistants Chauncey Wood and Gia Barresi of Silverglate & Good. FN2. John Perry Barlow, one of the founders of the Electronic Frontier Foundation, explains the meaning of "cyberspace" best -- it is the totality of interconnected computer networks, and the activities taking place on them: The WELL ... is an example of the latest thing in frontier villages, the computer bulletin board. In this kind of small town, Main Street is a minicomputer to which ... as many as 64 microcomputers may be connected at one time by phone lines and ... modems. In this silent world, all conversation is typed. To enter it, one forsakes both body and place and becomes a thing of words alone. You can see what your neighbors are saying (or recently said) ... . Town meetings are continuous and discussions rage on everything from sexual kinks to depreciation schedules. There are thousands of these nodes in the United States, ranging from PC clone hamlets of a few users to mainframe metros like CompuServe, with its 550,000 subscribers. They are used by corporations to transmit memoranda and spreadsheets, universities to disseminate research, and a multitude of factions, from apiarists to Zoroastrians, for purposes unique to each. Whether by one telephonic tendril or millions, they are all connected to one another. Collectively, they form what their inhabitants call the Net. It extends across the immense region of electron states, microwaves, magnetic fields, light pulses and thought which sci-fi writer William Gibson named Cyberspace. J. Barlow, Crime and Puzzlement, 2P3 (1990)(emphasis in original). For other descriptions of the range of topics open for discussion on the networks, see Walker, "American Diary: In Thrall to the Data Bank," Manchester Guardian Weekly, Mar. 24, 1991, at 24, and Leccese, supra, at 18. FN3. As of this writing, the scope of "Operation Sun Devil" is unclear. Although many wholesale seizures of computer equipment have occurred over the past year and a half, executed by teams of federal and state agents, some law enforcement officers specifically have disavowed that their particular police action was a part of "Sun Devil." For example, "[f]ederal officials said that the raid on Steve Jackson Games [see infra] was not part of Operation Sun Devil." Lewis, "Can Invaders Be Stopped but Civil Liberties Upheld?," New York Times, Sept. 9, 1990, at 12F. FN4. "GURPS" is an acronym for "Generic Universal Role-Playing System." FN5 It is instructive to compare the experience of Phrack's young publisher with the treatment accorded other well-known publishers of pilfered documents. See New York Times v. United States, 403 U.S. 713 (1971). FN6 This apparently was the climactic day for the "Sun Devil" investigations. Barlow writes: One May 8, 1990, Operation Sun Devil, heretofore an apparently random and nameless trickle of Secret Service actions, swept down on the Legion of Doom and its ilk like a bureaucratic tsunami. On that day, the Secret Service served 27 search warrants in 14 cities from Plano, Texas to New York, New York. ... In a press release following the sweep, the Secret Service boasted having shut down numerous computer bulletin boards, confiscated 40 computers, and seized 23,000 disks. They noted in their statement that "the conceivable criminal violations of this operation have serious implications for the health and welfare of all individuals, corporations, and United States Government agencies relying on computers and telephones to communicate." ... [T]he deliciously ironic truth is that, aside from [a] 3-page Bell South document, the hackers had neither removed nor damaged anyone's data. Operation Sun Devil, on the other hand, had "serious implications" for a number of folks who relied on "computers and telephones to communicate." They lost the equivalent of about 5.4 million pages of information. Not to mention a few computers and telephones. J. Barlow, supra, at 14. Similar numbers were reported in Leccese, "Hackers under Attack," supra, at 9. FN7. It would be impossible to exaggerate the frequency with which computer information banks containing private information of third parties are seized, ostensibly in search of criminal evidence. A greenhouse owner in Indiana, charged with aiding and abetting in the cultivation of marijuana, had his computer equipment seized. More bizarre is the story of the nonprofit California cryogenics organization, whose computer equipment and cryogenics-related bulletin board were seized and shut down, in the course of a coroner's office investigation into the whereabouts of a missing human head. The organization reportedly initiated litigation under the Electronic Communications Privacy Act, 18 U.S.C. 2701 et seq. (discussed infra), and at this writing it appears that the case was settled after some proceedings. See Meeks, "The Case of the Missing Head and the Missing BBS" (available on the WELL, Apr. 12, 1991)(story reported as originating from BIX's Microbytes newswire, no date given). FN8. See e.g., Donovan v. Dewey, 452 U.S. 595 (1981); Zurcher v. Stanford Daily, 436 U.S. 547, 554-55 (1978); United States v. Kahn, 415 U.S. 143, 157 (1974); See v. City of Seattle, 387 U.S. 541 (1967); Camara v. Municipal Court, 387 U.S. 523 (1967). FN9 See Proceedings: Fourth Annual Computer Virus & Security Conference 426P42 (1991). Kapor and Godwin are, respectively, the President and Staff Counsel of the Electronic Frontier Foundation, a civil liberties group headquartered in Cambridge, Massachusetts, dedicated to "civilizing the electronic frontier." It "aims to lobby for laws to facilitate public computer networks, and to help in the legal defense of those it considers unjustly charged with computer crimes." See Dyson, "Commentary: Hackers' Rights," Forbes, Jan. 7, 1991, at 288. As part of EFF's work, it has undertaken litigation efforts on behalf of some of the parties described above who have been subjected to computer searches and seizures (including Steve Jackson Games and the publisher of Phrack). EFF also has intervened as amicus curiae in other cases implicating the constitutional liberties of bulletin board operators. FN10. Similarly, as discussed below, courts and attorneys should be sensitive to the interests protected by the Fifth and Sixth Amendments, when the equipment to be seized potentially contains attorney-client communications and legal work-product. FN11 Furthermore, Rule 1001(3) holds that an "original" can be "any print-out or other output readable by sight [and] shown to reflect the data accurately," which has been taken from a "computer or similar device." In view of this, it would seem that the Rules of Evidence have eliminated the need for many evidentiary disputes over the admissibility of a transcribed disk (as a supposed "duplicate") in lieu of the entire "original" computer system's data storage. FN12. Plainly, the decisional law has given newspapers and books stronger and surer protection against government intrusion than it has given to the broadcast media. Compare, e.g., Minneapolis Star and Tribune v. C.I.R., 460 U.S. 575 (1983); Near v. Minnesota, 283 U.S. 697 (1931), with F.C.C. v. League of Women Voters, 468 U.S. 364 (1984); Red Lion Broadcasting v. F.C.C., 395 U.S. 367 (1969). The courts' tolerance for government interference in broadcasting finds its principal justification in the notion that "[u]nlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to government regulation." National Broadcasting Co. v. United States, 319 U.S. 190, 226 (1943). The N.B.C. Court's observation may have been accurate in the 1940's but it is not so today. In the past fifty years we have witnessed a dizzying proliferation of electronic channels of communication. It would be a mistake to assume that there is a scarcity of modes of expression on the computer networks, and to consequently limit speech in those forums. See generally Peretti, "Computer Publication and the First Amendment," 3 Computer Underground Digest #3.09 (Feb. 28, 1991)(available on the WELL Apr. 12, 1991). FN13. It should be pointed out, however, that the ECPA also sets up as defenses to civil actions under the Act, "good faith reliance" on warrants or court orders. See 18 U.S.C. 2707(d)(1). FN14. Although the seizure of law office computer systems has not yet caught on in this country, it seems that it is a only a matter of time before it does. In the past decade, we have witnessed wide-ranging searches through attorneys' client files. E.g., DeMassa v. Nunez, 747 F.2d 1283 (1984). Other nations already have extended this procedure to electronic files. One example is the case of South African anti-apartheid attorney Yunus Mahomed. According to reports, his professional activities were "directly disrupted by police searches of his office and home in January and again in February 1989. On the first occasion computer disks were removed and later returned. During the second raid, the computer was removed. Mr. Mahomed obtained an injunction restraining police from tampering or retrieving information from the computer unless he is present." "Lawyer to Lawyer Network," March 1989 (appeal issued by Lawyers Committee for Human Rights). FN15. See also Baltica-Skandinavia Insurance Co. v. Booth, Potter, Seal & Co., No. 86-1967, 1987 U.S. Dist. LEXIS 9371 slip op. (E.D.Pa. Oct. 15, 1987), cited in J. Gergacz, supra, at 36 (Mar. 1989 Supp.)(court decided that document intended to remain confidential when it had been filed separately with other privileged documents, file was specially marked, and staff was instructed concerning its confidentiality); Allen v. Burns Fry, Ltd., No. 83 C 2915, 1987 U.S.Dist. LEXIS 4777, slip op. (N.D.Ill. June 8, 1987), cited in J. Gergacz, supra, at 36 (same). Generally, in cases where the client is a corporation, the courts seem to be most willing to honor the confidential nature of documents which both the attorney and client took explicit and energetic measures to guard. Compare Lois Sportswear U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985)("Because the client's intent determines whether the communication was confidential to begin with, such intent must be negated before the confidentiality can be deemed to have been destroyed and the privilege surrendered.").