Monday, August 31, 2009

Interesting Case out of the 9th Circuit on Rules for Computer Searches

En banc, the 9th Circuit, in an opinion by Kozinski, issues a major ruling on how the government is to go about obtaining and executing warrants for computer searches.

IN RE: SEARCH WARRANTS EXECUTED ON APRIL 8, 2004 AT CDT, INC., In Re, No. 05-55354 ý D.C. No. SEAL 1, CV-04-02887-FMC Plaintiff-Appellant, OPINION v. SEAL 2, Defendant-Appellee.

Argued and Submitted December 18, 2008—Pasadena, California Filed August 26, 2009 Before: Alex Kozinski, Chief Judge,

Here's Kozinski's summary of the new rules:

We accept the reality that such over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect. In general, we adopt Tamura’s solution to the problem of necessary over-seizing of evidence: When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the
plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or
an independent third party. See pp. 11880-81 supra. If the segregation is to
be done by government computer personnel, it must agree in the warrant
application that the computer personnel will not disclose to the
investigators any information other than that which is the target of the

3. Warrants and subpoenas must disclose the actual risks of destruction of
information as well as prior efforts to seize that information in other
judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the
information for which it has probable cause, and only that information may
be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it,
return non-responsive data, keeping the issuing magistrate informed about
when it has done so and what it has kept. See p. 11881-82 supra.

1 comment:

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