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    NACDL: Retaining Fourth Amendment Protections in Warranted Digital Searches

    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. […]

    The storage of massive amounts of personal information on digital devices such as computers, cell phones, external hard drives, and flash drives — and the way that this information is stored — presents a unique technological advent that challenges current Fourth Amendment law. Privacy advocates are proposing new rules to protect private digital information, while law enforcement agencies are generally relying on traditional search warrant law to sustain extensive and sometimes overly-intrusive searches of digital devices. Courts are attempting to balance the competing needs for both citizens’ privacy and effective law enforcement. […]

    From the National Association of Criminal Defense Lawyers’ (“NACDL”) perspective, the default must be the protection of privacy and Fourth Amendment rights. This report addresses warranted searches of digital devices, specifically what the underlying applications for a warrant should include and what restrictions magistrates should place on the search and seizure of private data before the warrant is executed. First, it sets forth a discussion of digital data storage, search, and seizure and the specific constitutional issues arising from them. Second, it discusses pre-search instructions: what they are, how courts have responded to them, and what theirmeritsanddrawbacksare. Finally,the report makes recommendations for legislative and judicial reform that account for the reality of digital searches. These recommendations draw from the use of both post-search reasonableness analysis and pre-search instructions.

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