Digital Searches, General Warrants, and the Case for the Courts

ABSTRACT Translating Fourth Amendment rules designed to regulate searches and seizures of physical property into rules that regulate digital investigations raises numerous questions. This Note seeks to address one narrow subset of the issues digital evidence collection presents: the execution of computer searches conducted pursuant to warrants, and the threat of general searches searches effectively unlimited in scope by the warrant--they raise. Both courts and academics have called attention to this risk of general searches, and many have proposed solutions that seek to preserve the Fourth Amendment's traditional balance between individual privacy and government need. However, a single workable rule remains elusive. While the proposed solutions do not provide answers in every context, many of the rules do have merit in specific factual situations. At least while digital technology continues to change at a rapid pace, lower courts should be encouraged to develop a toolbox of rules to address the problem. Reviewing courts should take the lead, exploring the contours and boundaries of the problem and developing different tools in various factual contexts through the process of common law decision-making. TABLE OF CONTENTS I. INTRODUCTION II. THE DEVELOPMENT OF FOURTH AMENDMENT JURISPRUDENCE. III. GENERAL SEARCHES: THE PROBLEM WITH DIGITAL INVESTIGATIONS IV. AN ELUSIVE SOLUTION V. THE CASE FOR THE COURTS VI. CONCLUSION I. INTRODUCTION Over the past several decades, computers have increasingly become an unavoidable part of everyday life. Since 1984, the number of U.S. households with a computer has grown more than eight-fold to sixty-six percent of all homes. (1) Over the last ten to fifteen years, courts and legal academics have been responding to this trend with increasing regularity, struggling to apply Fourth Amendment jurisprudence to the new contexts presented by these omnipresent tools. (2) Translating Fourth Amendment rules designed to regulate searches and seizures of physical property into rules that regulate digital investigations raises numerous questions. (3) This Note seeks to address one narrow subset of the issues digital evidence collection presents: the execution of computer searches conducted pursuant to warrants, and the threat of general searches--searches effectively unlimited in scope by the warrant--they raise. Both courts and academics have called attention to this risk of general searches, and many have proposed solutions that seek to preserve the Fourth Amendment's traditional balance between individual privacy and government need. However, a single workable rule remains elusive. While the proposed solutions do not provide answers in every context, many of the rules do have merit in specific factual situations. At least while digital technology continues to change at a rapid pace, lower courts should be encouraged to develop a toolbox of rules to address the problem. Reviewing courts should take the lead, exploring the contours and boundaries of the problem and developing different tools in various factual contexts through the process of common law decision-making. II. THE DEVELOPMENT OF FOURTH AMENDMENT JURISPRUDENCE In enacting the Fourth Amendment, former colonists were reacting to the outrages and abuses they had experienced under the British in the form of general warrants and writs of assistance. General warrants permitted searches and seizures without requiring individualized suspicion or describing the persons or items to be seized. (4) Such warrants were frequently issued to suppress political dissent both in England and in the American colonies; they authorized searches and seizures of all "trunks, studies, cabinets, and other repositories of papers" for evidence of seditious libel. (5) As Crown officials issued the warrants ex parte and as they had the effect of immunizing the officers who executed them against civil trespass suits, (6) general warrants were especially threatening to the colonists. …