Haven't read the opinion, but isn't it conceivable that these are prophylactic rules that the Court of Appeals is imposing on lower courts/magistrates within its jurisdiction (as this is an appeal from a federal court). I.e., what Paul Cassell argued that Miranda "really" was in Dickerson -- though in this case, it could actually make sense, because unlike Miranda, this is not being enforced against the states.

Would a federal court not have power to impose such rules as part of its inherent authority? (Absent congressional action to the contrary.)

I can see a practical basis for the rules, but will let my Elders and Betters comment on their legal authority.

With regard to waiving Plain View, let's say they are searching a computer based on a warrant for stolen credit card data. The investigators cannot click on the desktop icon that is labelled "Child Porn." Do you think that's what they are meaning?

If you walked into a house and saw child porn on the table, the Plain View exception would apply. But since you can't look inside a computer without a warrant, there is no Plain View inside the box.

Or maybe they mean you can't size the child porn on the table, when you walk in to seize the PC. I'll be lunch someone will try to interpret the ruling that way.

I hope Kozinski isn't relying on his own personal experience with computer evidence in writing this opinion.

If the Officer walking up to the computer screen sees Child Porn on the Screen or clearly labeled on the desktop, it was not in Plain View.

This is wrong, I meant to say "Unless the Officer walking up to the computer screen sees Child Porn on the Screen or clearly labeled on the desktop, it was not in Plain View."

Suppose the government has probable cause to search for A. Suppose further the government can search for A two different ways. It can look in the place where A is, or it can look everywhere, including places certain not to contain A, in the hopes that this will produce other evidence (for which the government does not have probable cause) into plain view.

Now, suppose the government argues that the first method is difficult to do and that it would prefer to do the second method. Is it unreasonable to argue that a magistrate should still insist on scope limits?

If it's good enough for the Brits, surely it must be good enough for the US?

Tell that to the folks who signed the Declaration of Independence.

Orin, what do you think of the "risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant" mentioned on page 25?

If you are looking for evidence of financial data misdealings, then you use the tools designed for analyzing financial data.

Fair enough. Let's change the hypothetical to the feds are looking for child porn and find a snuff film (solely involving adults, and including the owner of the computer).

I read the 9th Circuit's rules as saying the feds have to destroy that video and not use it as evidence.

@Orin Kerr: That's exactly what's so double about the role of the Courts in the US. On the one hand, there's the Declaration of Independence and the fact that both in Britain and in the US the Common Law is becoming ever rarer, since statute law is taking over. On the other hand, everybody and their brother seems to be making arguments based on Blackstone and even older English material, which is something that even the English don't do anymore.

(In English law there are a few old statutes that still apply, like the Statute of Frauds, and a few old cases, but in actual argument it is extremely rare to find something cited that is older than, say, 150 years.)

Which is why my remark was only partly in jest.

Fair enough. Let's change the hypothetical to the feds are looking for child porn and find a snuff film (solely involving adults, and including the owner of the computer).

I read the 9th Circuit's rules as saying the feds have to destroy that video and not use it as evidence.

Reasonable question because I believe the tools to identify the snuff film would be similar to the tools to find child porn.

If the tool turned up the snuff film mixed into a variety of other illegal pornography including the child porn that the warrant specified, the Government might be able to argue plain view and get it admitted with the rest of the case.

However, if the search for child porn just resulted in the one illegal porn (ie snuff film) file, the computer expert might only be able to tell the investigator that "no files covered by your warrant were found"

the fact that both in Britain and in the US the Common Law is becoming ever rarer, since statute law is taking over.

Except in Constitutional Law.

@SuperSkeptic: In Britain, there is hardly any constitutional law that isn't statute law, at least not the kind of law that might come before the courts. In the US, constitutional law is one of the most obvious places where the common law method still reigns. The point is that the common law method doesn't only mean careful, gradual development based on precedent. Sometimes, it means that the court - faced with a problem for which the law has no solution yet - fashions one itself.

In the US, there are a dozen or so Courts of Appeals, and one of them has now made a bold proposal for a solution to this problem. Hopefully, other Courts of Appeals and District Courts (,State Supreme Courts, etc.) will take up the challenge and follow this proposal or discuss it and reject it, and ultimately it will come before the Supreme Court, and they will have the last say. The Common Law implies a great amount of autonomy for the Courts, including the power to take bold steps. (Brown v Board of Education, Donoghue v Stevenson, Hadley v Baxendale, etc.)

If that's not the kind of Common Law you want, rewrite the constitution to strike a different balance. In English law, all constitutional rulings can be overruled by simple Act of Parliament. In the Netherlands, the courts are forbidden to review the constitutionality of statutes, as they are in France (almost). But ever since Marbury v Madison, this is the way the system works in the US.

"If you walked into a house and saw child porn on the table, the Plain View exception would apply. But since you can't look inside a computer without a warrant, there is no Plain View inside the box. "

If you have a warrant to search the closet for a gun, and you find a pound of coke, that's admissable, right ? same would apply to child porn on a puter when you're searching it for identity theft.

As a non-lawyer, I'm puzzled by why computer searches differ so much from pre-computer searches of offices, say. Suppose, in those days, the police had a warrant to search my office for evidence of fraud. Well, they would have to look at the actual contents of file drawers and folders, wouldn't they? Just relying on the labels would be pretty stupid.

So what happens when they find evidence of other crimes in those papers? Isn't that exactly analogous to the computer search? Nothing in my file drawer is in plain view, as I (perhaps incorrectly) understand it. Neither is anything in a file on my computer.

I think the analogy breaks down because of the sheer mass of information on computers and the fact that the Police were seizing the computers and data and taking them off site.

The Court based its decision on the same reasoning from an earlier case United States v. Tamura, 694 F.2d 591
(9th Cir. 1982). In that case, the police seized the contents of the file cabinet, paper records, and took them offsite for sorting. Back then the 9th said that a non-investigator should do the search and only provide the investigators the information covered by the warrant. The police were then required to return the rest of the files in a reasonable amount of time.

They just extended the same logic to computer searches. I believe they came down particularly hard because of the Governments abuse of the previous procedure.

Here is a case were the Government was searching a 3rd parties files for evidence of wrong doing by 10 specific individuals. The company offered to print out the records of those 10 people, but the Government seized all of their records, looked at the results of hundreds of other people and then claimed "plain view". They weren't plain view. They weren't on someones desk, the files weren't open, they were only in "Plain View" because the Government seized far more records than they needed to have the information that the warrant asked for.

Using the Government logic in this case, it would be easy to imagine a search warrant to Google for the contents of a specific persons email account and having the Government seize all of Googles data, pawing through it because "someone might be trying to hide it from them" and then building cases against thousands of other people that had nothing to do with their original case because the evidence was in "plain view".

Don Miller... unless the criminal was using steganography or some unusual, non-standard data format.

There's a surprising number of people who seem to get all bent out of shape at the prospect of police uncovering the pornography stashes of drug dealers or white collar criminals hiding financial records.

If I understand the facts correctly, the warrant was to search a third party's computer for evidence relating to certain targeted people, but in the course of that search evidence was found implicating other people. Is that an important distinction from the more common case where an individual's computer is searched for evidence against him?

If I think Mr. Big is hiding evidence in Google's cloud, and get a warrant to search all google owned computers for evidence against Mr. B, and in the course of that search I find evidence against thousands of people in unrelated cases, is that all admissible?

You can argue that these cases weren't unrelated; the counterargument would be that the search uncovered evidence of others in the same profession committing the same crime. If my warrant alleges an accountant is cooking the books, does that rope in all the other crooked accountants out there in the cloud?

I think this is about time. Not directly applicable, but I am reminded of how the Scientologists abused the civil equivalent a decade or so ago. They would routinely get ex parte writs of search and seizure for computers, take the computers (or, at least what was on them), and search the email there to find the next leads in their quests to shut down distribution of their "sacred texts". Back then, there was a lot less computer sophistication on the part of the court system, and they got away with this much too often.

The only actual difference anybody has so far suggested between a computer full of files and a filing cabinet full of files is that the computer can, potentially, hold a great deal more information than a filing cabinet. That's it. No other difference has been identified. I fail to see how that makes any constitutional difference whatsoever.

Let's suppose that the police have probable cause and obtain a warrant to search a business, say an insurance company, which has thousands upon thousands of files in it. Physical, old-fashioned filing cabinets with lots of files. It is not at all controversial, in 4th Amendment law, that the police, with a warrant, can look in all of those files to determine whether they contain the particular incriminating document being sought and, if the police stumble upon child porn in the process, they can use that evidence against the individual as well.

Now suppose the same business, but instead of maintaining paper files, they scan documents into the computer and delete the originals. So they have a couple of hard drives full of the same data which would otherwise take up 100 filing cabinets. The folks advocating for a heightened standard for searching a computer are saying that a different rule should apply, just because that business chooses to store its data on computer rather than in paper files. That makes no sense at all.

Look at #5 of the court's "rules." The government must destroy non-responsive data or, if it is not contraband, return it to the owner. In other words, if the government DOES find kiddie porn in the computer, indavertently or otherwise, they must destroy it, and they can't use any of it against the criminal. Why?

If our primary concern is keeping the government from snooping into our lawful affairs, that interest is not going to be protected by some exclusionary rule. If the cops want to just get their jollies looking at the homemade porn of you and your girlfriend or wife last night, they're not going to care about whether it's excluded from evidence or not.

Moreover, plenty of police departments still aren't terribly sophisticated with computer searches. Even those that are usually tend to be quite short-staffed, with the computer techs overworked. This rule will be exceedingly burdensome on them, as they can't just look at the computer, but will have to work with computer techs to design specific search criteria which is broad enough to find the criminal data being sought but not so broad as to pull in whatever files you folks are so quite certain couldn't possibly contain any criminal data at all.

Can the police look in TIFF files? Those are image files, but it's a commonly used format for saving scans of multi-page documents (a bit archaic now, but still used by some programs). How about PDF files? Most people don't keep porn in those, I suspect, but they do keep documents and spreadsheets in that format for sharing with other people. Can the police look in those files?

This is really ridiculous.

Pat,

Under existing 9th Circuit Tamura procedures, the Police can't search your 100 file cabinets.

They can get a warrant and a non-investigator can go through the file cabinets and provide the investigators the information covered by the warrant. Thereby protecting the privacy of all the other records in your file cabinet.

The decision tries to extend this analogy to computers. Tamura procedures have been in place in the 9th Circuit since 1982. I don't know what the procedures are in other circuits.

@ Martinned,

I apologize for the ambiguity, I meant merely to reference the U.S. in my comment in response to the italicized quote. I don't presume to know enough to comment on the law in Britain, except a bit historically - and even then mostly how it has affected the U.S. :) Thanks for the info.

An added point—I think it's an interesting question as to whether having a third-party rather than the government make decisions regarding admissibility (another 'veto point,' if you will)is all that helpful. True, the constitution is a limit on government, but I would be also concerned about abuses of power from the third party, as well. Such danger is evident from Boukos' comment above.

Would Nixon ever have lost an election if he could keyword search anybody's info? Should the court be mandating restrictions on the computer technology directly?

Finally a good decision from the federal courts.

While this question might be somewhat tangential, does anyone know current law on encrypted disks and files. Can the owner or custodian be forced to reveal the password or pass phrase?

David Schwartz:

Thanks very much-- that's helpful.

Think about this. Suppose your system used long pass phrases and suppose you used an incriminating one. Could we argue that handing over the phrase amounts to giving testimony? Just a thought.