In a recent article, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), I pointed out a newly emerging practice of some federal magistrate judges in computer search cases. When the government applies for warrants to search for and seize computers, some judges are rejecting the applications — even when probable cause exists and the warrants are particular — unless the government agrees to follow certain restrictions, crafted by the magistrate judge, on how the electronic search stage will be conducted. That new practice received an enthusiastic endorsement when the Ninth Circuit handed down its initial en banc opinion in United States v. Comprehensive Drug Testing (CDT), which seemed to invite (if not require) magistrate judges to impose a series of fairly strict limitations on computer searches. The Ninth Circuit backed down in CDT, though, when the Court amended the opinion and moved those limitations from the controlling en banc opinion to the concurring opinion of Judge Kozinski. The Ninth Circuit’s backing down defused the problem in the short-run, but it ensured that the lawfulness of the ex ante restrictions — and which restrictions can be imposed and when, if any are permitted — would be fought at a later date.
It didn’t take long, it seems. Recently, Magistrate Judge James Donohue in Seattle unsealed an opinion he handed down on February 11 denying a warrant application to search the computers of a suspect, Edward Cunnius. I have posted the opinion here: In The Matter Of The United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius. Judge Donohue agreed that the government had established probable cause to search Cunnius’s computers for evidence of his selling counterfeit Microsoft software on Craigslist. Although the opinion isn’t particularly clear on this, he doesn’t appear to argue that the warrant fails the particularity requirement. However, Judge Donohue denied the warrant application because the government refused to go along with two restrictions from Judge Kozinski’s concurrence in CDT. First, Judge Donohue wanted the government to promise it would not rely on the Fourth Amendment’s “plain view” exception to try to bring charges for evidence outside the scope of the warrant. Second, he wanted the government to agree to search the computer using a taint team. The government refused to go along with those requirements, and Judge Donohue indicated he would deny the application on that basis. Prosecutors then asked Judge Donohue to write an opinion explaining the reasons for his denial so the government could appeal the decision to the District Court. The opinion was sealed until Cunnius was indicted, at which time the opinion was made public.
Judge Donohue’s basic argument is straightforward: Computer searches are so invasive and so thorough that there should be limitations on how they are conducted to ensure they are reasonable. He then reasons that the CDT opinion seemed to invite magistrate judges to impose restrictions ex ante if they thought it appropriate, so he was able to do in that case. (Judge Donohue goes back and forth between suggesting that he has no choice to impose the restrictions and saying that he thinks it is merely a good idea to do so, but I’m not sure it makes much difference.)
It will be fascinating to see what happens with this case. As I explain in my recent Virginia article, I don’t think magistrate judges have the power to impose ex ante limitations on computer warrants outside probable cause and particularity. I agree that the differences between computer searches and physical searches justify some different rules on the former — including, in my view, ending the plain view exception for digital searches. But I think those differences must be recognized in litigation ex post when the courts have an actual set of facts, not ex ante when a magistrate judge receives a warrant application. Trying to guess at reasonableness ex ante, when there are no facts and there is no adversary process, seems like a very poor way to arrive at the proper application of fact-sensitive reasonableness that the Fourth Amendment requires. Just to be clear, this isn’t a pro-government or pro-privacy position. Rather, it’s a position about the nature of Fourth Amendment decisionmaking, and specifically the need to hand down Fourth Amendment rules in cases with actual facts and with real cases or controversies that can be appealed up to the Supreme Court.
Anyway, stay tuned. This should be an interesting case to watch.