Law professor Susan Brenner writes on cyber issues at her blog, CYB3RCRIM3. In a recent post, she discussed whether copying of data violates individual privacy and the Fourth Amendment safeguards on government search or seizure of person or property. In 2008’s U.S. v. Jefferson, 571 F.Supp.2d 696 (in the U.S. District Court for the Eastern District of Virginia), federal agents searched and seized items from William Jefferson’s office according to a list detailed in their warrant. But,  they also photographed some documents (including a PowerPoint presentation) that they did not seize. Brenner says:

Photographing anything is a way of copying it: Photographing a physical item – a TV set or a gun – makes a partial copy of the item; the photograph captures information about the item (model of the TV or type of gun + the condition either is in) but does not replicate physical item itself. Photographing the contents of a document essentially replicates the document; the copy won’t contain the actual physical attributes of the document (fingerprints, evidence of the paper and ink used to make it, etc.), but it captures the substance of the document.

I’d argue that photographing physical items, including documents, produces a less than complete version of the original item, which I don’t think undermines the Jefferson judge’s analysis. It seems to me a search is a search and a seizure is a seizure for 4^th Amendment purposes, regardless of whether it is a total search/seizure or a less than complete (non-zero-sum) search or seizure. The point is that a transfer has taken place that implicates 4^th Amendment values in privacy and/or possession.

I think the judge’s conclusion that photographing the PowerPoint presentation was both a search and a seizure is correct given how the photographing had to be done. I was using this case in a presentation a couple of days ago, and an audience member quite correctly pointed out that to photograph the entire presentation (which was apparently lying on a desk), the agent had to flip through the pages. Since the agent must have flipped through the pages of the presentation, he saw what was on each of them; his looking, however briefly, at the content of the pages was a search because a human being observed what was on them. Until he flipped through them, the pages were not visible and so remained private; looking at them compromised that privacy, therefore constituting a 4^th Amendment search.

Now let’s extrapolate the Jefferson court’s analysis of photographing documents to the process of copying computer data. I think the seizure part of his analysis applies to copying data because, as the Jefferson judge noted, copying results in a transfer of the information contained on the hard drive that’s copied. Since copying results in a transfer of information (data), we have a 4^th Amendment seizure, for the reasons I’ve outlined in earlier posts.

I’m not at all sure that copying data is a search because copying data is an automated process. An agent can copy a hard drive without having to “flip the pages,” as it were. That is, an agent or officer can copy a hard drive without ever looking at the data it contains. That, I think, differentiates the process of copying data from the process of photographing documents; if the process doesn’t necessarily involve direct observation of the information by a human being, I don’t see how it can be a search. (The search, of course, comes later . . . when a human being analyzes what’s on the hard drive.)

This entry was posted on Friday, October 30th, 2009 and is filed under Civil liberties, Fourth Amendment, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Possibly related posts:

• Orin Kerr: Fourth Amendment Seizures of Computer Data
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