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    Wall Street Journal: Courts Wrestle With Searches When the Evidence Is Digital

    The Wall Street Journal reports on problems that can arise when the evidence being searched in a case is digital rather than paper. The story focuses on a recent ruling (pdf) by the Ninth Circuit Court of Appeals.

    Federal investigators obtained a warrant to search the computer records of a laboratory that in 2003 had tested hundreds of Major League Baseball players for steroid use. The warrant authorized obtaining the records of 10 players, whose identities haven’t been disclosed.

    But in the course of searching computer records for the 10 players, government investigators came across evidence of illegal drug use by others and argued they had a right to seize those records as well. The government said this evidence was in plain view once investigators started searching through the computer files.

    That argument was “too clever by half,” the Ninth Circuit ruled in August, in a 9-2 vote.

    If every file on the computer has to be opened to find the specific evidence being sought under the search warrant, then every file would at some point be in “plain view,” wrote Chief Judge Alex Kozinski, in the majority opinion.

    But unlike walking into a room, searching a computer requires specific action — opening directories and files. To allow investigators to search through every file, and act on any evidence of illegality they find there, “creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant,” the court said.

    The Ninth Circuit also “set out guidelines on how the government and lower courts should proceed. Magistrate judges, when issuing a search warrant, should insist that prosecutors waive the plain-view doctrine in cases of digital evidence. Sorting through digital evidence should be done by parties other than the case agents, who should only be given material covered by the search warrant. Any evidence not covered by the search warrant would have to be returned to the owner or — if it was illegal material, such as files of child pornography — destroyed,” said the Associated Press. In his opinion for the majority, Chief Judge Alex Kozinski noted:

    Finally, the process of sorting, segregating, decoding and otherwise separating seizable data (as defined by the warrant) from all other data must be designed to achieve that purpose and that purpose only. Thus, if the government is allowed to seize information pertaining to ten names, the search protocol must be designed to discover data pertaining to those names only, not to others, and not those pertaining to other illegality. For example, the government has sophisticated hashing tools at its disposal that allow the identification of well-known illegal files (such as child pornography) without actually opening the files themselves. These and similar search tools may not be used without specific authorization in the warrant, and such permission may only be given if there is probable cause to believe that such files can be found on the electronic medium to be seized.

    In February, the Associated Press reported on a case that shows how difficult it is to conduct searches for electronic evidence. Guidance Software, which provides technology to conduct searches of electronic data, is facing problems because of questions concerning its own electronic evidence search in response to a lawsuit. The company’s “inability to cough up certain e-mails, even over several months, led an arbitrator to accuse it of gross negligence and proceeding in bad faith,” said the Associated Press.

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