Should courts adopt a new set of Fourth Amendment rules to regulate how the police can search computers for evidence? In particular, does the fact that so much electronic evidence outside the scope of a warrant can come into “plain view” during a computer search require a different approach to whether that evidence outside the scope of the warrant should be admitted?
Some courts have thought so. In the Tenth Circuit, for example, the usual objective test for admitting plain view evidence has been replaced by a subjective test designed to narrow the scope of plain view: Evidence outside the scope of a warrant is permitted in plain view only if the agent was subjectively looking for evidence within the scope of the warrant. And in the Ninth Circuit, the en banc court recently adopted a complex set of prophylactic rules to avoid admission of plain view evidence altogether in United States v. Comprehensive Drug Testing.
In the last two days, however, two circuits have handed down published decisions creating apparent circuit splits on both of these aspects of how the plain view exception applies to computer searches. Both of these circuits, the Fourth and the Seventh, reject the idea of adopting new rules for computer search and seizure.
1. United States v. Williams. The first decision is a Fourth Circuit opinion by Judge Niemeyer in United States v. Williams, expressly disagreeing with the Tenth Circuit’s plain view decision in United States v. Carey. Carey adopted a subjective test for the plain view exception to computer searches: Under that approach, the question is whether the agent who was searching through the computer was subjectively looking for evidence within the scope of the warrant. Judge Niemeyer disagreed:
Williams, relying on the Tenth Circuit’s opinion in United States v. Carey, advances an argument that the plain-view exception cannot apply to searches of computers and electronic media when the evidence indicates that it is the officer’s purpose from the outset to use the authority of the warrant to search for unauthorized evidence because the unauthorized evidence would not then be uncovered “inadvertently.”This argument, however, cannot stand against the principle, well-established in Supreme Court jurisprudence, that the scope of a search conducted pursuant to a warrant is defined objectively by the terms of the warrant and the evidence sought, not by the subjective motivations of an officer.
While Williams relies accurately on Carey, which effectively imposes an “inadvertence” requirement, such a conclusion is inconsistent with Horton. Inadvertence focuses incorrectly on the subjective motivations of the officer in conducting the search and not on the objective determination of whether the search is authorized by the warrant or a valid exception to the warrant requirement
In this case, because the scope of the search authorized by the warrant included the authority to open and cursorily view each file, the observation of child pornography within several of these files did not involve an intrusion on Williams’ protected privacy interests beyond that already authorized by the warrant, regardless of the officer’s subjective motivations.
Judge Niemeyer concluded by emphasizing that computer search and seizure rules should be the same as traditional search and seizure rules:
At bottom, we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents. . . . We have applied these rules successfully in the context of warrants authorizing the search and seizure of non-electronic files, see Crouch, 648 F.2d at 933–34, and we see no reason to depart from them in the context of electronic files.
2. United States v. Mann. Meanwhile, just yesterday, the Seventh Circuit handed down United States v. Mann, another plain view computer case that was authored by Judge Rovner. The Mann court seems to accept the Carey inadvertence standard for plain view (or arguably takes a third approach, that the test is whether the agent knew or should have known that the file opened was outside the scope of the warrant).
But in the court then goes on to reject the Ninth Circuit’s Comprehensive Drug Testing decision:
Although the Ninth Circuit’s rules provide some guidance in a murky area, we are inclined to find more common ground with the dissent’s position that jettisoning the plain view doctrine entirely in digital evidence cases is an “efficient but overbroad approach.” Id. at 1013 (Callahan, J., concurring in part and dissenting in part). As the dissent recognizes, there is nothing in the Supreme Court’s case law (or the Ninth Circuit’s for that matter) counseling the complete abandonment of the plain view doctrine in digital evidence cases. Id. We too believe the more considered approach “would be to allow the countours of the plain view doctrine to develop incrementally through the normal course of factbased case adjudication.” Id. We are also skeptical of a rule requiring officers to always obtain pre-approval from a magistrate judge to use the electronic tools necessary to conduct searches tailored to uncovering evidence that is responsive to a properly circumscribed warrant. Instead, we simply counsel officers and others involved in searches of digital media to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.
Two circuit splits on computer search and seizure in two days — not bad. I’ll probably offer some commentary on these decisions over the next few days, but for now I just wanted to note the new decisions. Thanks to Doug Berman for bringing them to my attention.
ruuffles says:
DO you think it’s likely that the 4th, now with a Dem-appt majority, will do, as the 9th, an en banc hearing? The two circuit judges on the panel were Rep-appt with a Clinton district judge.
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January 22, 2010, 9:42 amKenvee says:
I tend to agree with the Fourth on this. I just don’t see how the Tenth’s rule is anything other than reimposing the inadvertant discovery requirement, and that’s been expressly disavowed by SCOTUS. I don’t think that the mere fact that they’re looking at electronic files instead of physical ones is enough of a distinction to overcome Horton.
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January 22, 2010, 9:58 amTim says:
I wonder if these examples aren’t illustrations that the good faith exception to the 4th Amendment can never produce an outcome that is consistent with the Amendment’s commands. It appears to me that officers in these cases had probable cause for some search, which was corroborated by the judges when they issued the warrants. Allowing the plain view doctrine to apply in these cases seems to allow that exception to swallow the rule, specifically, that searches are presumptively unreasonable absent probable cause.
It also seems that Judge Rovner is content with allowing the plain view doctrine to destroy 4th Amendment protection completely once a warrant is issued. That doesn’t comply with, “particularly describing the place to be searched, and the persons or things to be seized,” as I see it.
It would seem to me that any “plain view” exception would not apply to the opening of another “container” in a household, a file cabinet, or an automobile, unless there was some objectively verifiable evidence that the container contained some evidence of a crime that would or could be destroyed without immediate action by the officer.
Just like in Arizona v. Gant, it seems apparent that once the computer is seized and there is no risk of evidence destruction, the rule should apply in such a way that requires warrants describing exactly what for and where the officer will look to find evidence of a crime.
My only reservation is wondering how this rule could be applied in such a manner such that it would not completely shackle law enforcement from gaining the information necessary to prosecute a criminal case in sensitive areas like this one where child pornography is involved. Some workable rule must be found that allows for the rule (warrants), yet allows for criminal investigation consistent with the social goals of law enforcement.
Great post, Professor. My favorite yet of yours involving the 4th Amendment.
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January 22, 2010, 10:03 amBuddy Hinton says:
Computers require enhanced Fourth Amendment protection because it is easier to convincingly plant “indisputable” evidence on a computer than it is to plant evidence in a person’s home.
A hostile government agent cannot send an illegal pornographic magazine into my home through my cable line. She would have to bring it in person. Even if she did, I could say that it was not mine, and there is some chance that a jury would believe me. Also, I would be allowed to cross examine the agent who planted the evidence. I would be able to find out whether there were numerous evidence tampering type complaints in her file.
None of these protections are in place with a computer search. It is not like a search of a file cabinet for these reasons. Greatly heightened 4a protections should govern computer searches, for cause related reasons, for reasonableness related reasons and for procedural due process reasons.
I don’t think any of the courts get this. Issue will not be ripe til they do, regardless of the silly splits that exist now.
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January 22, 2010, 10:16 amcomputer joe says:
Yeah I have to completely agree with kenvee here. The 4th pretty much covers every aspect of this.
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January 22, 2010, 10:18 amOrin Kerr says:
Great post, Professor. My favorite yet of yours involving the 4th Amendment.
Tim, but I didn’t actually provide any commentary: I just noted the cases. ;-)
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January 22, 2010, 11:23 amuberVU - social comments says:
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Buddy Hinton says:
And there is an even greater chance that the jury would believe me if the magazine was planted in my filing cabinet (as opposed to in my nightstand drawer); and there is an even greater chance that the jury would believe me if I had a whole set of filing cabinets; and there is still a greater chance that the jury would believe me if I had a warehouse full of filing cabinets. They might not believe that the constable planted it, but they would consider that I didn’t put it there or know about it.
But a jury will not believe me if a forensic computer search of my hard drive finds contraband, despite the fact that I have the data equivalent of a warehouse full of filing cabinets on my hard drive.
Again, this is just one of several reasons, as noted above, that a computer search is different than a filing cabinet search in important ways.
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January 22, 2010, 11:49 amIndiana says:
It seems hard to marshal a good argument against imposing a rule that officers should, at the very least, be required to obtain a second warrant once they come across material in “plain view.” While I wholeheartedly agree with Professor Kerr that the plain view doctrine, when applied to computer searches, eviscerates any privacy protection, that’s a hard sell to courts. It’s hard to imagine most courts completely invalidating the plain view doctrine for computer searches, or even altering the rule that the officer’s subjective intent doesn’t matter. That’s just very unlikely to happen. However, if an officer is required to get a second warrant once he finds, for example, child pornography, then it would seen to keep in tact the 4th’s protections while imposing no additional burden on the police.
Courts should remember that unlike normal 4th A cases, in computer cases the computers are seized and then searched. So there is no pressing reason that a second warrant could not be obtained. This simple fact seems to change the entire playing field in this area for me. There’s no risk of the evidence getting destroyed, as there would be if an officer had to obtain a second warrant before seizing a gun during the search of a house.
Also note that in the 4th Cir case, the officer did obtain a second warrant. In the 7th Cir case, the officer didn’t. Interesting.
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January 22, 2010, 12:21 pmTim says:
The commentary is well hidden, Professor. :)
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January 22, 2010, 1:24 pmBuddy Hinton says:
The commentary I perceive (perhaps incorrectly) is a concern that the President might not fill the Stevens and Ginsberg seats with ex-prosecutors, so we need to find lots of splits fast.
My response to the perceived commentary is first that vacancies will be filled by ex-prosecutors, and second that we should not be rushing this woefully underdeveloped aspect of the law. It is kind of like when they rushed computer software patent cases up to the Supreme Court in the late sixties and the 1970s and ended up with an unworkable nonsense test as far as the patent-eligible subject matter statute goes, written by people who didn’t understand software and didn’t understand the role of software in technological development.
Now that computers have developed (largely because the patent community ignored those wacky SCOTUS patent decisions for a long time, btw), we need judges who understand the role of computers in people’s lives, understand how things can end up on a computer that a person that a person did not put there, understand how things can end up on a computer that were not even put there by a person in the same room with the computer, understand why a person would use a computer the way that modern people do and expose their computers to risks that modern people do. It is easy to outline what the court needs to understand. It may even be easy to find judges who think they get it. It is more difficult to find judges who really do get it. They don’t exist yet. They won’t exist for a while yet. They certainly won’t be ex-prosecutors. To them, a computer is a career opportunity. They form a bias that it is highly unlikely they can get rid of. No, that is not quite it. rather, they are selected to be hired and promoted because they have/form the anti-privacy bias to such an extent that it is impossible to purge from their heads even if they were somehow inclined to try.
We need a different sort of judge on this. Judge Kozinski understands, of course. His computer is organic to his intellect and even his sense of humour. He would not be the same person that he is without his computer and I am sure he knows that. The ironic thing is that the very thing that qualifies him to be a good decider on these matters is widely considered to be the SAME thing that disqualifies him from SCOTUS. However, maybe as we get further past 9/11 he and his ilk will make a comeback, and hopefully the rules of computer search will not be set in stone before then.
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January 22, 2010, 2:16 pmOrin Kerr says:
Buddy, what are you talking about? Perceive where? From what?
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January 22, 2010, 2:35 pmBuddy Hinton says:
Two circuit splits on computer search and seizure in two days — not bad.
What you said is that it is a good thing splits are happening. The question becomes: why does he think it is a good thing? The answer is, of course, because this means that the issues will go up to the Supreme Court faster, but this just begs the question of why it is good that these issues will get to the Court sooner rather than later. This particular comment does not answer that particular question, but I made a guess as to why you think it is good that these issues will rise faster. Because it was a guess, I acknowledged explicitly that my perception of why you think it is good that this issue is poised to rise quickly could be a wrong one.
If Willie Fletcher’s Con Law class taught me anything (which is debatable), it was that the identities of the people sitting on SCOTUS matter a lot. My guess is that is why you are taking an anti-percolation position on computer searches.
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January 22, 2010, 2:58 pmOrin Kerr says:
Buddy Hinton,
Your guesses are inaccurate on multiple fronts.
First, I’m the one who has staked out the civil libertarian position in this area. I argued in my 2005 Harvard Law Review article that the courts should (eventually) abolish the plain view exception in computer searches. Indeed, the Williams opinion featured in the post specifically quotes from my article that makes that argument, and on which the defendant expressly relied, and it then rejects the computer-specific approach I advocate. In light of that, your guess as to my motives is pretty obviously wrong.
As for why I think it’s “not bad” that the circuits have created splits, it’s because computer crime law is my specialty area. I started writing about these issues a long time ago, when no other scholars were familiar with them, on the guess that someday the issues would be important. Circuit splits and the prospect of eventual Supreme Court review help energize the scholarship on these topics: it gives me hope that someday other scholars will want to come out and join me in the sandbox.
Third, your claim that I am “taking an anti-percolation position on computer searches” is incorrect. I personally don’t want the Supreme Court to address the plain view issue any time soon: I think we need more time on it, to try out different approaches and see where the technology goes. If you read my articles in the area you’ll see why.
Finally, I realize you have a lot of passion for civil liberties, and I assume you think that this is a blog where people will disagree with you and you can fight the good fight against The Other. But you might consider doing a little more reading and a little less speculating before you start making those sorts of assumptions. Just a thought.
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January 22, 2010, 3:35 pmBuddy Hinton says:
I knew how you feel about plain view on computer searches. I understand that, for most people, this passes for a pro-privacy viewpoint and a civil libertarian point of view.
Don’t think this point of view is pro-privacy or civil libertarian enough. I think all computer searches should be deemed unreasonable because it is too easy for authorities or others to plant evidence there. I think computers are different because: (i) they are susceptible to the planting of evidence in unique ways; and (ii) people are far too likely to impute planted evidence to the computer’s user. These unique concerns should lead to some unique Fourth Amendment approaches. The unique approach should be that a computer search is not reasonable. reason dictates that the potential for serious prejudice outweighs the probative value. Every time. Precisely because the evidence could have been planted and the planted evidence would clearly be accorded far too much weight.
I do stand corrected about your subjective intentions for cheering the circuit splits. Still, I urge you to join me in being sad about them for the reasons I explained above. I also urge you to get even more pro-privacy about computer searches, than you are now, like I am, and for the reasons I outlined in my earlier posts.
One minor correction: I am not so much passionate about civil liberties as I am passionate about civil rights against government searches and seizures.
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January 22, 2010, 4:15 pmOrin Kerr says:
Buddy Hinton,
Just so I understand, you’re proposing a rule that the government is never allowed to search a computer under any circumstances, even with a valid warrant and probable cause, even to obtain contraband described with particularity in the warrant?
That is, if you’re a bad guy and you store all your evidence on the computer, the Fourth Amendment should never allow the government to get that evidence under any circumstances at all?
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January 22, 2010, 4:37 pmIndiana says:
Well, Buddy’s proposal is pretty patently ridiculous. Back to serious discussions. Professor Kerr, while eliminating the plain view doctrine for computer searches makes practical and intuitive sense, don’t you think it’s unlikely that many courts will be willing to step that far? For better or worse, much of the judiciary is rather conservative in this respect. Asking a court to invalidate the PVD seems like a tough sell. I appreciate the academic approach, and happen to agree with you, but as a practicing lawyer, I think it might be better to pursue other avenues as a way of inching courts closer to eliminating the PVD. The second warrant argument seems like a good place to start. There are really no downsides, from any party’s point of view. But, even this falls victim to my own argument — it’s hard to get a court to create a new rule, no matter how reasonable. Alas...
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January 22, 2010, 4:53 pmOrin Kerr says:
Indiana,
I think you have to take the long view with these sorts of issues. Right now the problem is there, but it’s not yet a crisis. They key is that the technology is going in the direction of this being a bigger and bigger problem over time. Over time, a distinction that today seems a little artificial (paper documents versus electronic documents) will come to seem completely natural. That’s my sense, at least.
Also, the Ninth Circuit’s decision in CDT shows that courts are not against doing weird and wacky things in this area just to cover computer searches. The Ninth Circuit’s answer was very weird, but it shows the judicial instinct is out there.
I think the key historical precedent is automobile searches. From the 1920s on, courts have treated automobile searches as their own category. If my prediction is right, computers will be the automobiles of the 21st century for Fourth Amendment law.
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January 22, 2010, 5:04 pmBuddy Hinton says:
I can imagine some circumstances where it would be reasonable to allow a government search.
If there was first hand testimony of a reliable witness that the witness saw a person accessing contraband data on a given computer, then it might be reasonable to allow a search because there would be a solid reason to believe that the accused knows that is contraband data on her machine. Even then, the search should be limited to finding the contraband that was actually observed in the process of being accessed on the machine (this is where your no plain view stuff helps).
However, this is the kind of exception that shows what the rule should be. The rule should be that it is illegal to search a computer. The rule would let some bad guys get away with some bad things. However, it is far more important that innocent people don’t become victims of evidence planting by government agents or by private individuals. Unless and until that problem is dealt with, the general rule should be that no computer searching at all is allowed. Maybe the problem could be overcome someday, somehow. Giving a searchee the power and money to have an independent expert copy the computer before it is searched might help somewhat, but even that won’t help with contraband planted before the searchee’s expert was hired on.
Everybody tends to ignore the real possibility of planted evidence in traditional brick and mortar searches and seizures. We can do this because there are some meaningful checks on the government’s ability to plant. There is some actual risk the government will get caught if it plants evidence in meatspace. We regard this as a powerful disincentive to plant evidence, and on this basis we allow evidence collected by government authorities engaged in the competitive endeavor of crime fighting to be considered as evidence despite the obvious motivation to plant.
Arguably, this line of thinking and jurisprudencing works reasonably well for meatspace. It is the way it is, at any event. This line of thinking and jurisprudencing does not work at all for computers. There is substantially no way to prove that the government (or even a private individual or bot) planted the evidence found on one’s computer. There is always reasonable doubt to the effect that the evidence was planted. That is a problem, and that is a problem no one is talking about yet. I think the idea is that this line of thought is so far out of the mainstream that it is unthinkable — that it is unthinkable that computers could basically be made categorically off limits for government searching. Nevertheless, this is what a correct reading of 4A dictates.
Eventually somebody will come up with a virus that puts one ch1Ld pr0n piccie on everybody’s computer at the same time and in an obscure directory. Hopefully it will be a simulated image so that no children are actually compromised. On that day, the unthinkable will become thinkable. From that day forward, the mainstream will come to understand what should already be understood by 4A scholars. Computer searches are inherently unreliable by their unique nature and are almost never reasonable because of their unreliability.
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January 22, 2010, 5:13 pmOrin Kerr says:
Buddy,
Perhaps you should write a law review article offering your view of the Fourth Amendment. I don’t think I’ve come across anything like your view in either the literature or in discussions on the topic.
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January 22, 2010, 5:16 pmBuddy Hinton says:
It would take a lot of courage to write something like that non-anonymously. It would be like setting all my p/w’s to HACKME times 1000 on an internet full of folks who make their living ferreting out computer crime. I am not sure I have the courage. That is one reason I like Volokh.com. Nobody has any way of figuring out who you are unless you trust that person enough to give them clues.
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January 22, 2010, 5:26 pmIndiana says:
Professor Kerr,
I like the comparison to automobiles. Convincing courts that this is just an entirely different field of search is key, and difficult to do, so establishing automobile searches as precedent is helpful.
Of course, the obvious retort to your post is: But that’s the 9th Circuit. Unfairly or not, that’s the view much of the conservative legal establishment will take. It’s always mystified me, really. A case from the 9th Circuit is automatically discounted by many lawyers/judges, and that’s especially true when it comes to establishing, as opposed to interpreting, legal rules.
But I guess I’m not sure what your view is with respect to actually implementing your ideas, as opposed to writing about them. I am of course taking the practical approach, but I’m not sure head-on attacks on the PVD will find much success. To do that, a judge needs to have a very intuitive, personal relationship with computers and technology. To a college student, or a law student, comparing a computer search to a file cabinet search is ridiculous — no further arguments needs to be made. But to a judge in his/her 60s, the unfortunate truth is that it would take much more convincing, just b/c of them growing up without computers. This isn’t true for all judges or people in their 60s of course, but I think this is a big obstacle, in conjunction with the judiciary’s generally conservative bent, in trying to eliminate the PVD for computer searches. In the near future anyway. Hopefully once you’re on the bench and making the rules that will change.
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January 22, 2010, 5:31 pmOrin Kerr says:
Indiana,
I think the skepticism of the Ninth Circuit is more than justified: They do law there differently than anywhere else. But I think the key is just to give these issues time. Computers are new, and we’re just starting to figure out how the law should regulate them. Missteps are not an all unlikely, but I think eventually the courts will get these issues right.
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January 22, 2010, 5:44 pmPintler says:
I’m not sure I follow. If I am executing a warrant and decide to ‘find’ a baggie of drugs I took off some other suspect, it seems like it would be pretty hard to mess that up in a way you could disprove. If I seize your computer and start adding kiddie porn, off hand I would think I’d want to be pretty careful to not risk messing up — to get all the metadata right, to ensure that I haven’t futzed with the file in a traceable way, to alter e.g. your two years of browsing history to show you accessing the file at the right time, etc. ISTM there are a lot of details to get right, vice ‘I found this baggie in his sock drawer’.
If your concern is planting evidence via hacking, again, I had better be pretty careful to do it right, and I better hope you aren’t a careful sysadmin who starts to wonder why a computer from fbi.gov is trying to penetrate. If he does and keeps logs, the police hacker is in a tough bind. Moreover, you would have the defense of ‘I was hacked’, and since you were in fact hacked, the various details would all point to a successful hack as the cause of the kiddie porn or whatever.
Disclaimer: I’m a computer nerd, but security/forensics isn’t my specialty; maybe I’m missing something.
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January 23, 2010, 2:15 pmBuddy Hinton says:
1. Yeah, plants in meatspace can be messed up:
http://www.youtube.com/watch?v=q0Vp32WeGHE
http://www.alternet.org/drugreporter/51151/
http://www.socialistaction.org/jones7.htm
2. The FBI is not going to plant contraband data by sending it from fbi.gov. You are just going to have to trust me on that.
3. We have some intuitive idea of how difficult it is to plant tangible contraband in meatspace. That is why we regard police-collected evidence as reasonable to search for in the first place, and then admit at trial in the second place. We don’t have any idea of how easy versus difficult it is to plant contraband data on somebody. We don’t have any idea how easy it might be before the seizure, and we don’t have any idea how easy it might be after the seizure. If the planting is done before the seizure, in any halfway intelligent manner (that is, not by sending it from fbi.gov), we don’t have any idea of likely it is that the suspect can find and purge it before a seizure takes place. If the planting is done after the seizure, then we have no idea how easy it might be to make that planting effectively undetectable as a practical matter (I am assuming that the defendant is NOT OJ Simpson here).
4. As long as the uncertainty noted in item 3 exists, it is not reasonable to allow any computer searches. The burden is on the government to prove reasonability. The burden should never be placed on the defendant to prove unreasonability. This uncertainty, noted in item #3 above, pretty much categorically prevents the government from proving reasonability as of where we sit in early 2010. Maybe someday there will be a way. Maybe someday a way will be developed if courts do what they should do and force the (swimming in cash) executive branch to replace the uncertainty with relative certainty, as 4a commands, to any computer searches taking place. Some serious getting with the program is required first, among judges, and even (perhaps more surprisingly) among civil-liberties-valuing scholars.
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January 23, 2010, 3:39 pmBuddy Hinton says:
Continuing on with the difficulty of planting in meatspace, there was a case in Pittsburgh a couple of weeks ago where it would have been in the best interests of the police to plant a small gun on the suspect. They said they thought they perceived a small gun and that that gave them the right to effect an arrest by all means necessary (and the necessary means turned out to be rather brutal). Turns out, there was not a gun there. If there had been a gun there, the police would not be facing a civil suit now.
Because of the difficulty in planting a gun, (it is credibly alleged that) they planted a bottle of Mountain Dew instead (the soda not the whiskey). Assuming the allegation is true (as it probably is), the police clearly planted the Mountain Dew, instead of a gun, because guns are difficult to plant without being detected (as opposed to any kind of ethical compunction about planting). As a matter of fact, I will make the bold prediction that the police officers in this case will never be prosecuted for planting the Mountain Dew because, hey, it is just Mountain Dew so who cares? Just in case you thought I went off the deep end and am making this up, here is a link to the story:
http://www.msnbc.msn.com/id/35012543/ns/us_news/
What does this have to do with computer searches? It is this: we have, as a society, well developed instincts about how hard it is to plant various objects in various places and under various circumstances (eg, non-police witnesses v. no non-police witnesses). We know that it is easier to plant a Mountain Dew than a gun. We know that if the Mountain Dew bottle has been scrubbed clean of prints by the police, then a jury is likely to believe that the police planted it (which is not to say that the planting of the Mountain Dew will be tried to a jury in this case (although it certainly should — it is serious evidence tampering)). If they did plant a Mountain Dew, we know why they did that instead of planting a gun. None of these contigent lines of thinking need to be explained.
The world of computer evidence is different in a fundamental way. The way is this: nobody, not us a society, and not even computer experts, have any instincts at all about how likely it is that any piece of computer evidence was planted. Anyone who has gotten a virus knows that it is at least SOMEWHAT easy to plant digital data. Anyone who has had their wife find there porno on their shared computer knows that it is possible to get caught planting data if sufficiently inartfully done. However, these tiny bits of knowledge are not enough. What we do not know is how to evaluate whether a piece of artfully planted computer evidence was planted. We also do not have any rational basis for choosing between experts if one shows that a piece of evidence could have been planted, and the other expert says that it could not have been planted. There are probably experts out there who believe that ALL computer evidence could have been planted, and planted in a post hoc undetectable way (except for that data which an actual human being watched a human suspect access with his own ears and/or ears). Even a keylogger can be emulated. So much can be emulated!
Now, it is clear, to me anyway, how most people deal with the problems regarding computer searches I am bringing up here. They think: “It is difficult to plant in meatspace, so it must be difficult to plant in cyberspace, too — or at least I will proceed on that assumption until someone affirmatively proves otherwise.” This is blatantly incorrect. The correct assumption is that it is easy to plant (in a practically undetectable way) in cyberspace, and that evidence elicited from computer searches has no probative value until we get a handle on how difficult it is to plant. Because computer searches (as of now) yield no probative evidence, they are per se unreasonable (whether “warranted” or not).
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January 24, 2010, 9:26 amBryan says:
Professor Kerr,
It appears that there are now at least 3 different approaches (Carey, Williams, and Comprehensive Drug testing) to plain view in digital searches (and perhaps 4 if you distinguish Mann from Carey). Do you think this increases the likelihood of Supreme Court review?
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January 24, 2010, 8:34 pmLarry Daniel says:
Professor Kerr,
I think you might enjoy my article on this subject published over at DFI News.
Plain View Doctrine in Digital Evidence Cases — A Common Sense Approach October 19, 2009
As always, I find your articles very interesting.
Larry Daniel
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January 31, 2010, 8:43 am