Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Those Cohen Files Don't Let the FBI Forage through Everything

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Those Cohen Files Don't Let the FBI Forage through Everything

Article excerpt

The latest dispute arising out of last week's search of the offices and home of Michael Cohen, President Donald Trump's personal lawyer, concerns who gets to review the thousands of files the FBI seized. Mr. Trump and Mr. Cohen want their lawyers to have first crack at the evidence; the government says it should get to review the materials itself.

We at the American Civil Liberties Union - which supports neither party - believe U.S. District Court Judge Kimba Wood should appoint a neutral "special master "to review the files. Only such a process can ensure that the government gets access to what it's authorized to see - evidence of non-privileged criminal conduct covered by warrants - and doesn't get access to what it should not see.

While this particular case implicates the president, its broader issues are increasingly salient in the digital age. Otherwise lawful searches can lead to seizures of computers and smartphones that contain terabytes of very personal data, detailing the most intimate elements of private life. This case is about more than the attorney-client privilege; it goes to the heart of how privacy is to be protected going forward in the digital age.

At Monday's hearing, a federal prosecutor explained that, while the Cohen searches yielded 10 boxes of physical files, the "real volume" of material would come from files stored digitally on more than 12 electronic devices, including smartphones and computer hard drives. The vast majority of the information on those devices is likely to have no connection to the evidence for which the search warrant was issued, and some of it may be covered by the attorney-client privilege. The question, then, is how to separate what the government can lawfully see from what is none of its business.

Whether physical or digital, a search must always be circumscribed by its specific purpose. In the material world, physical characteristics help ensure that the government adheres to that purpose. If the police have a warrant to search for a rifle, they can open a guitar case that might contain the weapon, but can't open spice boxes or search through folders of documents. …

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