The National Association of Criminal Defense Lawyers has released a white paper, “What’s Old Is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches (Pre-Search Instructions and Post-Search Reasonableness),” concerning law enforcement officials’ searches of digital evidence. Here’s an excerpt from the introduction:
New technologies have challenged the jurisprudence of Fourth Amendment searches and seizures. Despite the disruptive and transformational changes that digital technologies have brought to our society, the constitutional prerequisites for searches and seizures of digital evidence should be no different than searching a physical place. Neither the technological sophistication nor the diminutive physical dimensions of a device to be searched are dispositive of the privacy interests in the information stored on the device.
The fact that computers, external file storage and cloud servers are employed does not require one to alter the high threshold that must be met to justify government intrusion. Each new technology that affords a different type of private place to preserve private communications does not require a different standard for the search and seizure of its contents than is constitutionally required for the search of a file cabinet or the search of a home. What is different is the amount of private information that can be improperly searched and the substantially greater intrusion upon privacy and Fourth Amendment interests that may result.
One must look to the Fourth Amendment to define the limits of such searches and then ask whether the existing policies, procedures and guidelines applied to the technologies of the day appropriately mirror our fundamental constitutional values. Currently, they do not. The starting point cannot be that everything is fair game. [...] Read more »