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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

“Papers and effects” in a digital age 

In 1761, Boston patriot James Otis argued against England’s use of its “writs of assistance.” Such writs, widely used in colonial times, permitted English officials to enter a Crown subject’s private home or office—at will, and without regulation. These warrantless searches, also called “general searches,” were used to investigate purported crimes against the Crown. 

Otis argued against these writs, saying:

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they breach through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

After the Revolution, the founders prohibited these searches by enacting the Constitution’s 4th Amendment. The Amendment forbids unreasonable searches and seizures, and requires that, henceforth, in order to search the government must have a warrant, issued by an independent magistrate, and upon proper cause. A valid 4th Amendment warrant must specify premises, persons, and define the evidence being sought.

And in executing the warrant, law enforcement is limited to seeking and seizing evidence actually related to the crime under investigation. This relationship between the crime being investigated and the search’s extent sometimes leads to the aphorism that, “if you are looking for stolen televisions, you cannot look in sugar bowls.”

There is, however, a corollary: While an investigator may only search for evidence related to a specific crime, the investigator need not be blind to evidence of other crimes in “plain view.” So, while warrants must restrict the scope of the search, further investigations can be initiated if evidence of other crimes is readily observable.

A constitutional warrant, thus, protects citizens from general searches and unregulated intrusions into the citizen’s person and property.
Citizens are protected against the “bare suspicions” against which James Otis argued. A specific warrant is critically important in protecting personal freedom.

But how do these principles translate into our increasingly digitalized world? Is a cell phone or a personal computer an object “in plain view?” The question is especially urgent now, when such devices may contain a vast array of extremely personal material about its owner, as well as evidence of a particular crime or material highly relevant to a legitimate investigation.

By way of a simple example, assume a person’s cell phone or laptop computer holds a “notes” file showing drug debts owed, or drug proceeds taken. And assume an investigator obtains a valid warrant for those notes. Is that investigator, when analyzing that phone or computer, prohibited from looking into photo files that might reveal the owner trafficked in child pornography? The law is only beginning to grapple with these kinds of questions.

Part of the law’s grappling has been felt in terms of revised admissibility standards. New amendments to Federal Rule of Evidence 902 address digital records such as those collected and preserved from devices, including emails. These additions make digital records submitted as evidence self-authenticating, meaning no additional evidence is required for admission in court:

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

Even with these rules now in place, it still remains to be seen how the courts will apply them. It is clear that movements toward standardizing data collection and authentication are being made, and that adherence to proper procedures regarding digital evidence is increasingly recognized. Given the huge amounts of data stored on digital devices, admissibility issues are particularly important in examining 4th Amendment considerations. In addition to the need to stay within the limits set forth in a warrant, evidence admissibility requirements also protect a person’s “papers and effects” and regulate what is allowed.

It is most unlikely that the 4th Amendment’s drafters contemplated a single device that might contain records of personal communications, medical diagnoses and treatments, banking and financial transactions, family matters (remember, photography came far after the Constitution’s drafting), and investment holdings, all in the palm of a person’s hand.

The authors of this article suggest that the courts need to refine and redefine the 4th Amendment’s protection of “papers and effects” as it applies to executing a search warrant of electronic data-storing devices. If an investigator may not look into a sugar bowl to find evidence of stolen televisions, it seems unreasonable to permit the same investigator to indiscriminately rummage through a citizen’s smart phone or personal computer.

 

 

MARK LANTERMAN is CTO of Computer Forensic Services. A former member of the U.S. Secret Service Electronic Crimes Taskforce, Mark has 28 years of security/forensic experience and has testified in over 2,000 trials. He is a member of the MN Lawyers Professional Responsibility Board.  

 

 

Co-author Hon. JAMES M. ROSENBAUM (Ret.) served 25 years on the federal bench as a United States District Court Judge for the District of Minnesota and served as chief judge of the district. For the four years prior, he served as Minnesota’s United States Attorney.

 

Notes

1  http://www.constitution.org/bor/otis_against_writs.htm 

2  https://www.rulesofevidence.org/article-ix/rule-902/ 

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