Some of the most interesting computer search and seizure questions involve consent searches. The Fourth Amendment allows suspects or third parties to consent to a search property over which they have common authority. With the right to consent comes a right to withdraw consent: If you let the cops look through your stuff, you also have a right to stop them from looking mid-way through their search.
Computer searches create an added wrinkle, however: Computer searches are ordinarily conducted by first making a perfect copy (an “image”) of the hard drive. The government then searches the copy rather than the original. It often happens that the suspect or a third party will initially consent, but that when they consult a lawyer, the lawyer tells them to withdraw their consent immediately. This creates a pretty tricky question: if a suspect or third party consents to a computer search, and the government then makes an image, can the suspect or third party withdraw consent and take away the government’s authority to search through the image copy? Or is the image the government’s property, such that it is too late for the suspect to withdraw consent to search it?
This is a really fun question, and one that government forensic specialists are often curious about. It’s also the topic of a note in my Computer Crime Law casebook. But it had never actually come up in a published decision until last week, when Judge Merryday in Tampa handed down United States v. Megahed, 2009 WL 722481 (M.D.Fla. March 18, 2009).
The facts involve an explosives case about to go to trial in Tampa, Florida, involving Youseff Megahed, a college student. On August 6, 2007, the FBI came to the family residence of the suspect looking for bombs, bomb-making materials, and anything that could be used to manufacture or build a bomb. The suspect wasn’t home, but the suspect’s father, Samir, was present. FBI asked the father for consent to search the home. The father signed a consent form in English and Arabic allowing a complete search of the residence an a seizure of