Academic journal article Harvard Journal of Law & Technology

Separating Hard Fact from Hard Drive: A Solution for Plain View Doctrine in the Digital Domain

Academic journal article Harvard Journal of Law & Technology

Separating Hard Fact from Hard Drive: A Solution for Plain View Doctrine in the Digital Domain

Article excerpt


  I. Introduction
 II. The Plain View Doctrine and Digital Searches
      A. Facts of Comprehensive Drug Testing
      B. Facts Relating to Federal Rule of Criminal Procedure
         Rule 41
 II. The Conflict Between Rule 41 and CDT II
      A. Direct Conflict Between Rule 41 and CDT II
      B. Courts Are Likely To Apply Rule 41, in Conflict with
      C. Practical Necessity as Motivation for Avoiding CDT II
      D. Courts Are Unlikely To Adopt CDTII Outside the
        Medical Context
III. Flawed Alternatives: Other Suggestions for
     Resolving the Electronic Plain View Problem
     A. The Permissive Container Approach
     B. Intent-Based Approach of Carey
     C. Technological Solutions
 IV. A Better Approach: Balancing Society's Interest
     in Preventing Underlying Crime Against the
     Defendant's Interest in Searched Material
     A. Balancing Test Best Serves Purposes of Plain View
     B. Applying the Balancing Test
        1. Society's Interest in Preventing the Underlying Crime
        2. Individual Privacy Interest in Searched Material
        3. Case Studies
     C. Comporting with Rule 41 and Horton
     D. Preserving Case Outcomes While Formulating a
        Coherent Standard
     E. Avoiding a Statutory Definition
  V. Conclusion

I. Introduction

In a two-day span, two different circuit splits developed over the issue of how to interpret the plain view doctrine for digital searches. (1) The judiciary has struggled for more than a decade with the application of the plain view doctrine in an electronic world. (2) However, the courts' attempts to adopt a constitutionally robust or logically coherent approach to computer searches within the doctrine's framework have met with failure.

A recent decision by the Ninth Circuit highlights this discord. In United States v. Comprehensive Drug Testing, (3) or "CDT II," the court, sitting en banc, set forth heightened procedural and particularity requirements for the search and seizure of digital evidence. (4) In so doing, the Ninth Circuit ignored the practical necessities of law enforcement as well as the preferences of the Supreme Court and instead adopted a sweeping ban that forbids the search of any file not specifically mentioned in a warrant. (5) The Ninth Circuit rule effectively rejects the plain view doctrine for electronic searches. The vitality of this decision both within and outside of the Ninth Circuit is unclear in light of recent judicial rulemaking. Specifically, the requirements announced in CDT II conflict with the latest revision of Rule 41 of the Federal Rules of Criminal Procedure ("FRCrP") that became effective December 1, 2009. This creates the potential problematic situation of a court ignoring--and implicitly questioning the constitutionality of--an approved but not yet enacted Federal Rule.

This Note argues that the CDT II factors are doomed to fail. First, courts are unlikely to disregard the Federal Rules of Criminal Procedure in applying these factors. Second, the CDT II factors are unworkable outside of the medical context. Nor does Rule 41 provide a workable approach to digital search and seizure. Rather, Rule 41 creates a void in Ninth Circuit precedent that the CDT II rule fails to fill. Rule 41 does not provide a well-reasoned search approach but merely codifies the ambiguous status quo in allowing expansive and rudderless electronic searches. Just as CDT IPs approach is too strict, Rule 41's approach is too lax. Both of these flaws evince the incompatibility of the physical doctrine with the electronic world.

This Note presents a much-needed new approach. There are already a handful of alternatives to the electronic plain view doctrine--such as intent-based and technology-based approaches--but their costs outweigh their benefits. The best framework is a balancing test that weighs the seriousness of the crime alleged against the importance of the privacy interests threatened by the search. …

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