Lecture 4 Procedural Law (1)
Orin S. Kerr Searches and Seizures in a Digital World
This article develops a normative framework for applying the fourth amendment of the United
States to searches of computer hard drives and other electronic storage devices. It explores the
various ways that the Fourth Amendment could apply to the retrieval of evidence from
computers and charts out a recommended path.
The Fourth Amendment: ‘Every search or seizure has to be reasonable, and a warrant could be
issued under the fourth amendment only if it particularly describes the place to be searched and
the person or thing that is to be seized.’
Part 1: explores four basic differences between the dynamics of traditional home searches and
the new computer searches that trigger a need to rethink how the fourth amendment applies.
The environment: homes vs. hard drives
Home searches are conducted by physically entering and observing, while
computer searches require passing an electric current over rotating magnetic
points, processing data, and then sending it to a monitor or other output device.
What does it mean to search a computer storage device? In the physical world,
entering a home constitutes a search. Merely observing a room does not
constitute a search, but opening containers and cabinets to look inside does.
The copying process: private property vs. bitstream copies
Home searches occur at the suspect’s residence, while computer searches
typically occur offsite on a government computer that stores a copy of the
suspect’s hard drive.
Computer searches generally occur on government property rather than the
suspect's, which raises important legal questions. What is the legal significance
of generating the bitstream copy? Does this constitute a seizure of the original
data and is this reasonable?
The storage mechanism: home vs. computer storage
Home searches normally involve a limited amount of property, whereas
computer searches involve entire virtual worlds of information.
How can fourth amendment rules limit and regulate the scope of computer
searches? Can the rules that limit physical searches also apply to computer
searches, or are new rules needed?
The retrieval mechanism: physical vs. logical
Unlike home searches, computer searches generally occur at both a physical and
virtual level through the use of special programs designed to retrieve evidence.
While a logical search is based on the file systems found on the hard drive as
presented by the operating system, a physical search identifies and recovers data
across the entire physical drive without regard to the file system.
It raises questions about the rules that should govern computer searches and
seizures. It is more difficult to plan a computer search ex ante, the search
procedures are more contingent than procedures for physical searches.
Part 2: explores how the fourth amendment applies to the data acquisition stage of computer
searches.
Rules that should regulate looking through computer files, and contends that a fourth
amendment search occurs whenever data is exposed to human observation. Retrieving evidence
from a computer ordinarily should require a warrant or an applicable exception to the warrant.
Computer forensics process can be broken down into two basic steps:
Orin S. Kerr Searches and Seizures in a Digital World
This article develops a normative framework for applying the fourth amendment of the United
States to searches of computer hard drives and other electronic storage devices. It explores the
various ways that the Fourth Amendment could apply to the retrieval of evidence from
computers and charts out a recommended path.
The Fourth Amendment: ‘Every search or seizure has to be reasonable, and a warrant could be
issued under the fourth amendment only if it particularly describes the place to be searched and
the person or thing that is to be seized.’
Part 1: explores four basic differences between the dynamics of traditional home searches and
the new computer searches that trigger a need to rethink how the fourth amendment applies.
The environment: homes vs. hard drives
Home searches are conducted by physically entering and observing, while
computer searches require passing an electric current over rotating magnetic
points, processing data, and then sending it to a monitor or other output device.
What does it mean to search a computer storage device? In the physical world,
entering a home constitutes a search. Merely observing a room does not
constitute a search, but opening containers and cabinets to look inside does.
The copying process: private property vs. bitstream copies
Home searches occur at the suspect’s residence, while computer searches
typically occur offsite on a government computer that stores a copy of the
suspect’s hard drive.
Computer searches generally occur on government property rather than the
suspect's, which raises important legal questions. What is the legal significance
of generating the bitstream copy? Does this constitute a seizure of the original
data and is this reasonable?
The storage mechanism: home vs. computer storage
Home searches normally involve a limited amount of property, whereas
computer searches involve entire virtual worlds of information.
How can fourth amendment rules limit and regulate the scope of computer
searches? Can the rules that limit physical searches also apply to computer
searches, or are new rules needed?
The retrieval mechanism: physical vs. logical
Unlike home searches, computer searches generally occur at both a physical and
virtual level through the use of special programs designed to retrieve evidence.
While a logical search is based on the file systems found on the hard drive as
presented by the operating system, a physical search identifies and recovers data
across the entire physical drive without regard to the file system.
It raises questions about the rules that should govern computer searches and
seizures. It is more difficult to plan a computer search ex ante, the search
procedures are more contingent than procedures for physical searches.
Part 2: explores how the fourth amendment applies to the data acquisition stage of computer
searches.
Rules that should regulate looking through computer files, and contends that a fourth
amendment search occurs whenever data is exposed to human observation. Retrieving evidence
from a computer ordinarily should require a warrant or an applicable exception to the warrant.
Computer forensics process can be broken down into two basic steps:
