Searches and Seizures In A Digital World:

My new paper, Searches and Seizures In A Digital World, was recently accepted for publication in the Harvard Law Review and is now available as a draft in electronic form. Here is the abstract:

  The new frontier of the Fourth Amendment is the search and seizure of computer data. Created to regulate entering homes and seizing physical evidence, the Fourth Amendment’s prohibition on unreasonable searches and seizures is now called on to regulate a very different process: retrieval of digital evidence from electronic storage devices. While obvious analogies exist between searching computers and searching physical spaces, important differences between them will force courts to rethink the basic meaning of the Fourth Amendment’s key concepts. What does it mean to “search” computer data? When is computer data “seized”? When is a computer search or seizure “reasonable”?
  This article offers a normative framework for applying the Fourth Amendment to searches of computer data. It begins by exploring the basic differences between physical searches of physical property and electronic searches of digital evidence. It then proposes an exposure theory of Fourth Amendment searches: any exposure of data to an output device such as a monitor should be a search of that data, and only that data. The exposure approach is then matched with a rule for computer seizures: while copying data should not be deemed a seizure of that data, searches of copies should be treated the same as searches of the original. In the final section, the article proposes a rethinking of the plain view exception in computer searches to reflect the new dynamic of digital evidence investigations. The plain view exception should be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice. Tailoring the doctrine in light of the new realities of computer investigations will protect the function of existing Fourth Amendment rules in the new world of digital evidence.

  I welcome comments from all sources, but would be particularly interested in thoughts from techies; the article is premised on the factual differences between physical searches and the computer forensics process, and I want to make sure that my description of the tech side matches the real world.

  You can download a copy here; just scroll down and click on the download button. Please direct comments to okerr (at sign) law.gwu.edu.