Search Warrants in an Era of Digital Evidence:

This Thursday I will be presenting a new paper at the University of Mississippi Law School’s annual Fourth Amendment symposium. This year’s symposium is on searching and seizing computers, a topic that I have spent a lot of time thinking (and writing) about in the last few years. My paper is entitled “Search Warrants in an Era of Digital Evidence,” and I have just posted a draft of it online that you can access here. Here is the abstract of the article:

This Article contends that the legal rules regulating the search warrant process must be revised in light of the demands of digital evidence collection. Existing rules are premised on the one-step process of traditional searches and seizures: the police obtain a warrant to enter the place to be searched and retrieve the property named in the warrant. Computer technologies tend to bifurcate the process into two steps: the police first execute a physical search to seize computer hardware, and then later execute a second electronic search to obtain the data from the seized computer storage device. The failure of law to account for the two-stage process of computer searches and seizures has caused a great deal of doctrinal confusion, and makes it difficult (if not impossible) for the law to regulate the warrant process effectively. The Article concludes by offering a series of proposed amendments to Rule 41 of the Federal Rules of Criminal Procedure to update the warrant process for the era of digital evidence.

Unlike most law review articles, this piece is designed to encourage a pretty specific practical reform. My hope is that the article will inspire the Advisory Committee of the Federal Rules of Criminal Procedure to propose an amendment to Rule 41, the rule governing search warrants. The article makes two specific recommendations:

First, the law should require warrants seeking digital evidence to state the property to be searched for at both the physical and the electronic search stages. That is, the warrant should state the physical evidence that the police plan to seize at the physical stage, and the electronic evidence that the forensics analysts plan to search for at the electronic stage. Second, warrant rules should be amended to require that the electronic search step proceeds in a timely fashion. Specifically, the law should require investigators to mirror-image seized computers and return the equipment in a reasonable period of time (such as 30 days) when the hardware is merely a storage device for evidence. When the hardware is believed to be contraband, a fruit, or instrumentality of crime, investigators should be required to begin the forensics process within a specific period of time (such as 60 days) to establish whether that belief is correct. If it is not, the hardware should be returned; if it is, the hardware can be retained.

The symposium itself will be webcast live on Thursday morning from this site; I believe I am scheduled to present my paper at 9:30 CST. The paper will be published in the Mississippi Law Journal‘s annual Fourth Amendment symposium issue in the fall of 2005.