Rules for the Matrix: Regulating Search and Seizure in a Digital World

Gowel, John J., The Judge Advocate General's School, United States Army

As we enter the fourth decade during which computers have been widely available for home purchase and the third decade of widely-available internet access, the Supreme Court, the military's Court of Appeals for the Armed Forces, and many federal circuits have yet to sanction a general framework for applying the Fourth Amendment to the individual computer or electronic storage device. The federal circuits are split as to whether computers and their storage media require special approaches and safeguards in order for a valid search or whether computers are just another type of container for Fourth Amendment purposes. Courts also lack consensus on the related question of how to treat individual files during the course of a search. Are all files on a storage device subject to examination to see if they are the sought file in disguise, or must searchers rely on the outwardly apparent file properties which are viewable before opening them? The answers to these questions affect the application of the plain-view doctrine and whether significant evidence found during these computer searches may be used against the owner or user of the storage device. Many digital evidence plain-view cases involve the discovery of photos or videos of children being sexually exploited or assaulted. The lack of clarity in this area of the law increases the chances that police may overstep the bounds of the murky lines that courts have been slow to clarify. These missteps by law enforcement will result in digital evidence being needlessly suppressed, and government agent acts of innocent ignorance will allow significant evils to go unpunished.

This thesis seeks to provide a basic framework for applying the Fourth Amendment to digital evidence. The goal is to provide a framework which allows consistent application of Fourth Amendment concepts to digital evidence. This framework aids in the probable cause and particularity determinations by magistrates, the review for reasonableness by courts, and can lead to more nuanced and detailed interpretations of reasonableness, particularity, and probable cause by appellate courts.

First, I propose that, for purposes of the Fourth Amendment, a search only occurs upon human observation of the electronic data and not upon mere machine manipulation. Second, both the electronic storage device (e.g. hard drive, CD, DVD, thumb drive) and the individual files should be treated as containers under existing search and seizure jurisprudence. Third, warrants and search authorizations, when possible, must include reference to the non-content characteristics of files and the crimes for which probable cause exists. While not required, the attempts at bolstering particularity through ex ante rules for searches imposed by magistrates are permissible and, at times, desirable. Fourth, based on the proceeding proposals, the plain-view exception should continue to exist in full force, and it will not transform every warrant into the dreaded general warrant by virtue of its continued application in the digital world. Fifth, these proposals should be made part of the Military Rules of Evidence (MRE) to provide an accessible and clear framework to commanders, courts, and practitioners. The MRE are uniquely suited by style and tradition to incorporate these new rules.

Note: Abstract extracted from PDF file via OCR.

LLM (Master of Laws)
Electronic Evidence -- Law and Legislation -- United States, Search and Seizures -- United States -- History, United States -- Constitution -- 4th Amendment

TJAGSA Thesis 2011 Gowel, J.;


- Introduction;
- Historical Development of the Fourth Amendment ;
- The Fourth Amendment;
- The Framework for Digital Search and Seizure;
- Incorporate the Framework into the Military Rules of Evidence;
- Conclusion;
- Appendix A.

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