Looking for Trouble: An Exploration of How to Regulate Digital Searches

Article excerpt

I. INTRODUCTION ............................ 686

II. DIGITAL SEARCHES: WHAT IS THE PROBLEM AND WHY SHOULD I CARE? ...........................688

A. The Fourth Amendment ...........................688

B. The Plain View Doctrine ...........................689

C. The Unique Nature of Computer Data ...........................689

D. Circuit Court Approaches to Regulating Digital Searches ...........................691

1. Applying the Plain View Doctrine Without Restriction: The First, Third, and Fourth Circuits ...........................692

2. Adding an Inadvertence Requirement: The Tenth and Seventh Circuits ...........................696

3. The Ninth Circuit's Recommendation: Abandon the Plain View Doctrine ...........................699

III. PROTECTING OUR PRIVACY: A CLOSER LOOK AT THE OPTIONS ...........................702

A. Applying Ex Post Reasonableness Review to Digital Searches: Applying the Plain View Doctrine Without Restriction ...........................703

B. Using Ex Ante Conditions to Limit Digital Searches ...........................705

1. Ex Ante Warrant Regulations in General ...........................706

2. The Inadvertence Requirement of the Plain View Doctrine ...........................708

3. Regulations Prescribing Particular Search Protocols ...........................710

C. Abandoning the Plain View Doctrine Altogether ........ 713

IV. A SOLUTION THAT FITS THE CRIME ...........................716

V. CONCLUSION ...........................721

I. INTRODUCTION

Imagine that the cybercrime division of a local police force receives a report of fraudulent credit card purchases, and after linking subpoenaed credit card records to a particular shipping address, officers obtain a warrant to search the computer of the resident for evidence of identity theft and fraud. During a preliminary search of the suspect's hard drive, the investigators discover a folder marked "pre teen porno pix" filled entirely with picture and video files. Knowing that the evidence they are looking for is almost certainly contained within a text file, they have little reason to believe that opening this folder will benefit the identity theft investigation and they probably know that doing so will likely be beyond the scope of the warrant. For obvious reasons, however, the investigators have concerns about the folder. Should they be allowed to get a warrant to open the folder, and if so, should its contents be admissible evidence of a crime unrelated to fraud or identity theft?

According to some circuits the answer is yes. This scenario, which roughly parallels the fact pattern from the Third Circuit case United States v. Stabile, implicates the use of the plain view exception to the Fourth Amendment, which allows investigators to use any incriminating evidence that is in their plain view as they conduct an otherwise warranted search.1 Although the apprehension of a criminal in possession of child pornography is universally desirable, many privacy advocates are uncomfortable with the use of this plain view doctrine in the context of digital searches.2 For physical searches, the plain view doctrine has a proximity restraint, as evidence can only be in plain view if the investigating officer is nearby.3 In the digital context, where the contents of an entire hard drive are effectively "nearby," this proximity restraint no longer exists - prompting one commentator to liken digital searches to "an officer walking into the foyer of a mansion and being able to see in plain view every person and object in the entire structure."4 In light of this potential expansion of what constitutes plain view, how private are our digital files?

The question of how to constrain the scope of digital searches is one that has split the circuit courts but has yet to be squarely addressed by the Supreme Court.5 Some courts have largely circumvented the issue by declining to treat digital searches differently than physical searches. …