Fourth Amendment - Search and Seizure and Evidence Retention - Second Circuit Creates a Potential "Right to Deletion" of Imaged Hard Drives

Harvard Law Review, December 2014 | Go to article overview

Fourth Amendment - Search and Seizure and Evidence Retention - Second Circuit Creates a Potential "Right to Deletion" of Imaged Hard Drives


One of the most pressing challenges facing the legal world today is the application of constitutional law to rapidly evolving technology --particularly the application of the Fourth Amendment protection from unreasonable search and seizure to the digital frontier. (1) The Fourth Amendment was drafted primarily with physical property in mind, (2) to protect against general warrants "not limited in scope and application." (3) When executing warrants today, the standard approach in seizing electronic data is the creation of an identical read-only copy of the computer's contents called a forensic mirror image. (4) However, such evidence collection standards have generated a host of constitutional questions, centering on "how to limit the invasiveness of computer searches to avoid creating the digital equivalent of general searches." (5)

Recently, in United States v. Ganias, (6) the Second Circuit held that the government's retention of files outside the scope of a warrant from lawfully imaged hard drives for over two and a half years violated the Fourth Amendment. (7) While the reasoning behind this decision seems sound and intuitive when viewed against Fourth Amendment requirements regarding physical property, the opinion raises concerns about the evidentiary chain of custody; (8) as a result, the opinion risks creating a "right to deletion," (9) which could unnecessarily complicate criminal prosecutions.

In 2003, the Army launched an investigation into alleged "improper conduct" by an Army contractor, Industrial Property Management (IPM). (10) As part of the investigation, the Army obtained a warrant to seize materials from Stavros Ganias, IPM's accountant. (11) The warrant authorized the seizure of all "books, records, documents, materials, computer hardware and software and computer associated data relating to ... [IPM]." (12) When the warrant was executed, the Army's computer specialists made forensic mirror images of all three of Ganias's computers. (13) "[T]he investigators were careful ... to review only data" within the scope of the warrant. (14) However, they did not purge or delete the files that did not pertain to IPM and that were therefore "non-responsive" to the warrant. (15)

In late 2004, IRS investigators discovered accounting irregularities in the paper documents from Ganias's office. (16) The government then expanded its investigation of Ganias to include possible tax violations and discovered evidence that Ganias had improperly reported income for his clients, and perhaps for himself. (17) The IRS case agent sought to review Ganias's personal financial records, and although she knew they were stored on the government copies of Ganias's computers, did not believe she could properly review them as they were outside the scope of the 2003 warrant. (18) Ganias and his counsel did not respond to a request to access these files, and subsequently, the government obtained a warrant in April 2006 to search the preserved files of Ganias's personal financial records from 2003. (19)

In October 2008, Ganias was indicted by a grand jury for conspiracy and tax evasion. (20) In February 2010, Ganias sought to suppress the evidence obtained as a result of the 2006 warrant, (21) arguing that the data outside the scope of the 2003 warrant were held for an unreasonable amount of time and should have been returned. (22) In April 2010, the U.S. District Court for the District of Connecticut denied the motion on the grounds that the data were seized pursuant to a valid warrant by "means less intrusive to the individual ... than other means ... authorized." (23) On April 1, 2011, the jury convicted Ganias on both counts of tax evasion. (24) Ganias moved for a new trial on the basis of alleged jury misconduct, but the district court denied the motion (25) and later sentenced Ganias to twenty-four months' imprisonment. (26)

The Second Circuit reversed the denial of the motion to suppress, vacated Ganias's conviction, and remanded for further proceedings. …

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