|
Intellectual Property Section (CCIPS) and Obtaining Electronic Evidence in Criminal Investigations Computer Crime and Intellectual Property Section Criminal Division United States Department of Justice PREFACE This
publication supersedes Federal Guidelines for Searching and Seizing Computers
(1994), as well as the Guidelines’ 1997 and 1999 Supplements. Although
the interagency group that produced the Guidelines achieved its goal of offering
“systematic guidance to all federal agents and attorneys” in the law
of computer search and seizure, intervening changes in law and the dramatic expansion
of the Internet since 1994 have fostered the need for fresh guidance. This manual
is designed to combine an updated version of the Guidelines’ advice on searching
and seizing computers with guidance on the statutes that govern obtaining electronic
evidence in cases involving computer networks and the Internet. Of course,
this manual is intended to offer assistance, not authority. Its analysis
and conclusions reflect current thinking on difficult areas of law, and do not
represent the official position of the Department of Justice or any other agency. It
has no regulatory effect, and confers no rights or remedies. Attn:
Search and Seizure Manual I. SEARCHING
AND SEIZING COMPUTERS WITHOUT A WARRANT II. SEARCHING
AND SEIZING COMPUTERS WITH A WARRANT III. THE
ELECTRONIC COMMUNICATIONS PRIVACY ACT IV. ELECTRONIC SURVEILLANCE
IN COMMUNICATIONS NETWORKS V. EVIDENCE
VI.
APPENDICES In the last decade, computers and the Internet have entered the mainstream of American life. Millions of Americans spend several hours every day in front of computers, where they send and receive e-mail, surf the Web, maintain databases, and participate in countless other activities. Unfortunately, those who commit crime have not missed the computer revolution. An increasing number of criminals use pagers, cellular phones, laptop computers and network servers in the course of committing their crimes. In some cases, computers provide the means of committing crime. For example, the Internet can be used to deliver a death threat via e-mail; to launch hacker attacks against a vulnerable computer network; to disseminate computer viruses; or to transmit images of child pornography. In other cases, computers merely serve as convenient storage devices for evidence of crime. For example, a drug kingpin might keep a list of who owes him money in a file stored in his desktop computer at home, or a money laundering operation might retain false financial records in a file on a network server. The dramatic increase in computer-related crime requires prosecutors and law enforcement agents to understand how to obtain electronic evidence stored in computers. Electronic records such as computer network logs, e-mails, word processing files, and “.jpg” picture files increasingly provide the government with important (and sometimes essential) evidence in criminal cases. The purpose of this publication is to provide Federal law enforcement agents and prosecutors with systematic guidance that can help them understand the legal issues that arise when they seek electronic evidence in criminal investigations. The law governing electronic evidence in criminal investigations has two primary sources: the Fourth Amendment to the U.S. Constitution, and the statutory privacy laws codified at 18 U.S.C. §§ 2510-22, 18 U.S.C. §§ 2701-11, and 18 U.S.C. §§ 3121-27. Although constitutional and statutory issues overlap in some cases, most situations present either a constitutional issue under the Fourth Amendment or a statutory issue under these three statutes. This manual reflects that division: Chapters 1 and 2 address the Fourth Amendment law of search and seizure, and Chapters 3 and 4 focus on the statutory issues, which arise mostly in cases involving computer networks and the Internet. Chapter 1 explains the restrictions that the Fourth Amendment places on the warrantless search and seizure of computers and computer data. The chapter begins by explaining how the courts apply the “reasonable expectation of privacy” test to computers; turns next to how the exceptions to the warrant requirement apply in cases involving computers; and concludes with a comprehensive discussion of the difficult Fourth Amendment issues raised by warrantless workplace searches of computers. Questions addressed in this chapter include: When does the government need a search warrant to search and seize a suspect's computer? Can an investigator search without a warrant through a suspect's pager found incident to arrest? Does the government need a warrant to search a government employee's desktop computer located in the employee’s office? Chapter 2 discusses the law that governs the search and seizure of computers pursuant to search warrants. The chapter begins by reviewing the steps that investigators should follow when planning and executing searches to seize computer hardware and computer data with a warrant. In particular, the chapter focuses on two issues: first, how investigators should plan to execute computer searches, and second, how they should draft the proposed search warrants and their accompanying affidavits. Finally, the chapter ends with a discussion of post-search issues. Questions addressed in the chapter include: When should investigators plan to search computers on the premises, and when should they remove the computer hardware and search it later off-site? How should investigators plan their searches to avoid civil liability under the Privacy Protection Act, 42 U.S.C. § 2000aa? How should prosecutors draft search warrant language so that it complies with the particularity requirement of the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure? What is the law governing when the government must search and return seized computers? The focus of Chapter 3 is the stored communications portion of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701-11 (“ECPA”). ECPA governs how investigators can obtain stored account records and contents from network service providers, including Internet service providers (ISPs), telephone companies, cell phone service providers, and satellite services. ECPA issues arise often in cases involving the Internet: any time investigators seek stored information concerning Internet accounts from providers of Internet service, they must comply with the statute. Topics covered in this section include: How can the government obtain e-mails and network account logs from ISPs? When does the government need to obtain a search warrant, as opposed to 18 U.S.C. § 2703(d) order or a subpoena? When can providers disclose e-mails and records to the government voluntarily? What remedies will courts impose when ECPA has been violated? Chapter 4 reviews the legal framework that governs electronic surveillance, with particular emphasis on how the statutes apply to surveillance on the communications networks. In particular, the chapter discusses Title III as modified by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-22 (referred to here as “Title III”)1, as well as the Pen Register and Trap and Trace Devices statute, 18 U.S.C. §§ 3121-27. These statutes govern when and how the government can conduct real-time surveillance, such as monitoring a computer hacker's activity as he breaks into a government computer network. Topics addressed in this chapter include: When can victims of computer crime monitor unauthorized intrusions into their networks and disclose that information to law enforcement? Can network “banners” generate implied consent to monitoring? How can the government obtain a pen register/trap and trace order that permits the government to collect packet header information from Internet communications? What remedies will courts impose when the electronic surveillance statutes have been violated? Of course, the issues discussed in Chapters 1 through 4 can overlap in actual cases. An investigation into computer hacking may begin with obtaining stored records from an ISP according to Chapter 3, move next to an electronic surveillance phase implicating Chapter 4, and then conclude with a search of the suspect's residence and a seizure of his computers according to Chapters 1 and 2. In other cases, agents and prosecutors must understand issues raised in multiple chapters not just in the same case, but at the same time. For example, an investigation into workplace misconduct by a government employee may implicate all of Chapters 1 through 4. Investigators may want to obtain the employee's e-mails from the government network server (implicating ECPA, discussed in Chapter 3); may wish to monitor the employee's use of the telephone or Internet in real-time (raising surveillance issues from Chapter 4); and at the same time, may need to search the employee's desktop computer in his office for clues of the misconduct (raising search and seizure issues from Chapters 1 and 2). Because the constitutional and statutory regimes can overlap in certain cases, agents and prosecutors will need to understand not only all of the legal issues covered in Chapters 1 through 4, but will also need to understand the precise nature of the information to be gathered in their particular cases. Chapters 1 through 4 are followed by a short Chapter 5, which discusses evidentiary issues that arise frequently in computer-related cases. The publication concludes with appendices that offer sample forms, language, and orders. Computer crime investigations raise many novel issues, and the courts have only begun to interpret how the Fourth Amendment and federal statutory laws apply to computer-related cases. Agents and prosecutors who need more detailed advice can rely on several resources for further assistance. At the federal district level, every U.S. Attorney’s Office has at least one Assistant U.S. Attorney who has been designated as a Computer and Telecommunications Coordinator (“CTC”). Every CTC receives extensive training in computer-related crime, and is primarily responsible for providing expertise relating to the topics covered in this manual within his or her district. CTCs may be reached in their district offices. Further, several sections within the Criminal Division of the U.S. Department of Justice in Washington, D.C., have expertise in computer-related fields. The Office of International Affairs ((202) 514-0000) provides expertise in the many computer crime investigations that raise international issues. The Office of Enforcement Operations ((202) 514-6809) provides expertise in the wiretapping laws and other privacy statutes discussed in Chapters 3 and 4. Also, the Child Exploitation and Obscenity Section ((202) 514-5780) provides expertise in computer-related cases involving child pornography and child exploitation. Finally,
agents and prosecutors are always welcome to contact the Computer Crime and Intellectual
Property Section (“CCIPS”) directly both for general advice and specific
case-related assistance. During regular business hours, at least two
CCIPS attorneys are on duty to answer questions and provide assistance to agents
and prosecutors on the topics covered in this document, as well as other matters
that arise in computer crime cases. The main number for CCIPS is (202) 514-1026.
The Fourth Amendment limits the ability of government agents to search for evidence without a warrant. This chapter explains the constitutional limits of warrantless searches in cases involving computers.
According
to the Supreme Court, a warrantless search does not violate the Fourth Amendment
if one of two conditions is satisfied. First, if the government’s conduct
does not violate a person’s “reasonable expectation of privacy,”
then formally it does not constitute a Fourth Amendment “search” and
no warrant is required. See Illinois v. Andreas, 463 U.S. 765, 771 (1983). Second,
a warrantless search that violates a person’s reasonable expectation of privacy
will nonetheless be “reasonable” (and therefore constitutional) if it
falls within an established exception to the warrant requirement. See Illinois
v. Rodriguez, 497 U.S. 177, 183 (1990). Accordingly, investigators must
consider two issues when asking whether a government search of a computer requires
a warrant. First, does the search violate a reasonable expectation of privacy? And
if so, is the search nonetheless reasonable because it falls within an exception
to the warrant requirement? B. The
Fourth Amendment’s “Reasonable Expectation of Privacy” in Cases
Involving Computers A search is constitutional if it does not violate a person’s “reasonable” or “legitimate” expectation of privacy. Katz v. United States, 389 U.S. 347, 362 (1967) (Harlan, J., concurring). This inquiry embraces two discrete questions: first, whether the individual’s conduct reflects “an actual (subjective) expectation of privacy,” and second, whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable.’” Id. at 361. In most cases, the difficulty of contesting a defendant’s subjective expectation of privacy focuses the analysis on the objective aspect of the Katz test, i.e., whether the individual’s expectation of privacy was reasonable. No bright line rule indicates whether an expectation of privacy is constitutionally reasonable. See O’Connor v. Ortega, 480 U.S. 709, 715 (1987). For example, the Supreme Court has held that a person has a reasonable expectation of privacy in property located inside a person’s home, see Payton v. New York, 445 U.S. 573, 589-90 (1980); in conversations taking place in an enclosed phone booth, see Katz, 389 U.S. at 358; and in the contents of opaque containers, see United States v. Ross, 456 U.S. 798, 822-23 (1982). In contrast, a person does not have a reasonable expectation of privacy in activities conducted in open fields, see Oliver v. United States, 466 U.S. 170, 177 (1984); in garbage deposited at the outskirts of real property, see California v. Greenwood, 486 U.S. 35, 40-41 (1988); or in a stranger’s house that the person has entered without the owner’s consent in order to commit a theft, see Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978). 2. Reasonable Expectation of Privacy in Computers as Storage Devices
The most basic Fourth Amendment question in computer cases asks whether an individual enjoys a reasonable expectation of privacy in electronic information stored within computers (or other electronic storage devices) under the individual’s control. For example, do individuals have a reasonable expectation of privacy in the contents of their laptop computers, floppy disks or pagers? If the answer is ‘yes,’ then the government ordinarily must obtain a warrant before it accesses the information stored inside. When confronted with this issue, courts have analogized electronic storage devices to closed containers, and have reasoned that accessing the information stored within an electronic storage device is akin to opening a closed container. Because individuals generally retain a reasonable expectation of privacy in the contents of closed containers, see United States v. Ross, 456 U.S. 798, 822-23 (1982), they also generally retain a reasonable expectation of privacy in data held within electronic storage devices. Accordingly, accessing information stored in a computer ordinarily will implicate the owner’s reasonable expectation of privacy in the information. See United States v. Barth, 26 F. Supp.2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable expectation of privacy in files stored on hard drive of personal computer); United States v. Reyes, 922 F. Supp. 818, 832-33 (S.D.N.Y. 1996) (finding reasonable expectation of privacy in data stored in a pager); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995) (same); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993) (same); United States v. Blas, 1990 WL 265179, at *21 (E.D. Wis. 1990) (“[A]n individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container.”). But see United States v. Carey,172 F.3d 1268, 1275 (10th Cir. 1999) (dicta) (analogizing a computer hard drive to a file cabinet in the context of a search pursuant to a warrant, but then stating without explanation that “the file cabinet analogy may be inadequate”). Although
individuals generally retain a reasonable expectation of privacy in computers
under their control, special circumstances may eliminate that expectation. For
example, an individual will not retain a reasonable expectation of privacy in
information from a computer that the person has made openly available. In
United States v. David, 756 F. Supp. 1385 (D. Nev. 1991), agents looking
over the defendant’s shoulder read the defendant’s password from the
screen as the defendant typed his password into a handheld computer. The
court found no Fourth Amendment violation in obtaining the password, because the
defendant did not enjoy a reasonable expectation of privacy “in the display
that appeared on the screen.” Id. at 1389. See also
Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection.”). Nor will individuals generally enjoy a reasonable
expectation of privacy in the contents of computers they have stolen. See
United States v. Lyons, 992 F.2d 1029, 1031-32 (10th Cir. 1993). 3. Reasonable Expectation of Privacy and Third-Party Possession Individuals who retain a reasonable expectation of privacy in stored electronic information under their control may lose Fourth Amendment protections when they relinquish that control to third parties. For example, an individual may offer a container of electronic information to a third party by bringing a malfunctioning computer to a repair shop, or by shipping a floppy diskette in the mail to a friend. Alternatively, a user may transmit information to third parties electronically, such as by sending data across the Internet. When law enforcement agents learn of information possessed by third parties that may provide evidence of a crime, they may wish to inspect it. Whether the Fourth Amendment requires them to obtain a warrant before examining the information depends first upon whether the third-party possession has eliminated the individual’s reasonable expectation of privacy. To analyze third-party possession issues, it helps first to distinguish between possession by a carrier in the course of transmission to an intended recipient, and subsequent possession by the intended recipient. For example, if A hires B to carry a package to C, A’s reasonable expectation of privacy in the contents of the package during the time that B carries the package on its way to C may be different than A’s reasonable expectation of privacy after C has received the package. During transmission, contents generally retain Fourth Amendment protection. The government ordinarily may not examine the contents of a package in the course of transmission without a warrant. Government intrusion and examination of the contents ordinarily violates the reasonable expectation of privacy of both the sender and receiver. See United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992); but see United States v. Walker, 20 F. Supp.2d 971, 973-74 (S.D.W. Va. 1998) (concluding that packages sent to an alias in furtherance of a criminal scheme do not support a reasonable expectation of privacy). This rule applies regardless of whether the carrier is owned by the government or a private company. Compare Ex Parte Jackson, 96 U.S. (6 Otto) 727, 733 (1877) (public carrier) with Walter v. United States, 447 U.S. 649, 651 (1980) (private carrier). A government “search” of an intangible electronic signal in the course of transmission may also implicate the Fourth Amendment. See Berger v. New York, 388 U.S. 41, 58-60 (1967) (applying the Fourth Amendment to a wire communication in the context of a wiretap). The boundaries of the Fourth Amendment in such cases remain hazy, however, because Congress addressed the Fourth Amendment concerns identified in Berger by passing Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. §§ 2510-22. Title III, which is discussed fully in Chapter 4, provides a comprehensive statutory framework that regulates real-time monitoring of wire and electronic communications. Its scope encompasses, and in many significant ways exceeds, the protection offered by the Fourth Amendment. See United States v. Torres, 751 F.2d 875, 884 (7th Cir. 1985). As a practical matter, then, the monitoring of wire and electronic communications in the course of transmission generally raises many statutory questions, but few constitutional ones. See generally Chapter 4.
Once an item has been received by the intended recipient, the sender’s reasonable expectation of privacy generally depends upon whether the sender can reasonably expect to retain control over the item and its contents. When a person leaves a package with a third party for temporary safekeeping, for example, he usually retains control of the package, and thus retains a reasonable expectation of privacy in its contents. See, e.g., United States v. Most, 876 F.2d 191, 197-98 (D.C. Cir. 1989) (finding reasonable expectation of privacy in contents of plastic bag left with grocery store clerk); United States v. Barry, 853 F.2d 1479, 1481-83 (8th Cir. 1988) (finding reasonable expectation of privacy in locked suitcase stored at airport baggage counter); United States v. Presler, 610 F.2d 1206, 1213-14 (4th Cir. 1979) (finding reasonable expectation of privacy in locked briefcases stored with defendant’s friend for safekeeping). See also United States v. Barth, 26 F. Supp.2d 929, 936-37 (W.D. Tex. 1998) (holding that defendant retains a reasonable expectation of privacy in computer files contained in hard drive left with computer technician for limited purpose of repairing computer). If the sender cannot reasonably expect to retain control over the item in the third party’s possession, however, the sender no longer retains a reasonable expectation of privacy in its contents. For example, in United States v. Horowitz, 806 F.2d 1222 (4th Cir. 1986), the defendant e-mailed confidential pricing information relating to his employer to his employer’s competitor. After the FBI searched the competitor’s computers and found the pricing information, the defendant claimed that the search violated his Fourth Amendment rights. The Fourth Circuit disagreed, holding that the defendant relinquished his interest in and control over the information by sending it to the competitor for the competitor’s future use. See id. at 1225-26. See also United States v. Charbonneau, 979 F. Supp. 1177, 1184 (S.D. Ohio 1997) (holding that defendant does not retain reasonable expectation of privacy in contents of e-mail message sent to America Online chat room after the message has been received by chat room participants) (citing Hoffa v. United States, 385 U.S. 293, 302 (1966)). In some cases, the sender may initially retain a right to control the third party’s possession, but may lose that right over time. The general rule is that the sender’s Fourth Amendment rights dissipate along with the sender’s right to control the third party’s possession. For example, in United States v. Poulsen, 41 F.3d 1330 (9th Cir. 1994), computer hacker Kevin Poulsen left computer tapes in a locker at a commercial storage facility but neglected to pay rent for the locker. Following a warrantless search of the facility, the government sought to use the tapes against Poulsen. The Ninth Circuit held that the search did not violate Poulsen’s reasonable expectation of privacy because under state law Poulsen’s failure to pay rent extinguished his right to access the tapes. See id. at 1337. An important line of Supreme Court cases states that individuals generally cannot reasonably expect to retain control over mere information revealed to third parties, even if the senders have a subjective expectation that the third parties will keep the information confidential. For example, in United States v. Miller, 425 U.S. 435, 443 (1976), the Court held that the Fourth Amendment does not protect bank account information that account holders divulge to their banks. By placing information under the control of a third party, the Court stated, an account holder assumes the risk that the information will be conveyed to the government. Id. According to the Court, “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. (citing Hoffa v. United States, 385 U.S. 293, 302 (1966)). See also Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (finding no reasonable expectation of privacy in phone numbers dialed by owner of a telephone because act of dialing the number effectively tells the number to the phone company); Couch v. United States, 409 U.S. 322, 335 (1973) (holding that government may subpoena accountant for client information given to accountant by client, because client retains no reasonable expectation of privacy in information given to accountant). Because computer data is “information,” this line of cases suggests that individuals who send data over communications networks may lose Fourth Amendment protection in the data once it reaches the intended recipient. See United States v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990) (suggesting that an electronic message sent via a pager is “information” under the Smith/Miller line of cases); Charbonneau, 979 F. Supp. at 1184 (“[A]n e-mail message . . . cannot be afforded a reasonable expectation of privacy once that message is received.”). But see C. Ryan Reetz, Note, Warrant Requirement for Searches of Computerized Information, 67 B.U. L. Rev. 179, 200-06 (1987) (arguing that certain kinds of remotely stored computer files should retain Fourth Amendment protection, and attempting to distinguish United States v. Miller and Smith v. Maryland). Of course, the absence of constitutional protections does not necessarily mean that the government can access the data without a warrant or court order. Statutory protections exist that generally protect the privacy of electronic communications stored remotely with service providers, and can protect the privacy of Internet users when the Fourth Amendment may not. See 18 U.S.C. §§ 2701-11 (discussed in Chapter 3, infra). Defendants
will occasionally raise a Fourth Amendment challenge to the acquisition of account
records and subscriber information held by Internet service providers using less
process than a full search warrant. As discussed in a later chapter, the
Electronic Communications Privacy Act permits the government to obtain transactional
records with an “articulable facts” court order, and basic subscriber
information with a subpoena. See 18 U.S.C. §§ 2701-11 (discussed
in Chapter 3, infra). These statutory procedures comply with the Fourth
Amendment because customers of Internet service providers do not have a reasonable
expectation of privacy in customer account records maintained by and for the provider’s
business. See United States v. Hambrick, 55 F. Supp.2d 504,
508 (W.D. Va. 1999), aff’d, 225 F.3d 656, 2000 WL 1062039 (4th Cir.
2000) (unpublished opinion) (finding no Fourth Amendment protection for network
account holder’s basic subscriber information obtained from Internet service
provider); United States v. Kennedy, 81 F. Supp.2d 1103, 1110) (D. Kan.
2000) (same). This rule accords with prior cases considering the scope of
Fourth Amendment protection in customer account records. See, e.g.,
United States v. Fregoso, 60 F.3d 1314, 1321 (8th Cir. 1995) (holding that
a telephone company customer has no reasonable expectation of privacy in account
information disclosed to the telephone company); In re Grand Jury Proceedings,
827 F.2d 301, 302-03 (8th Cir. 1987) (holding that customer account records maintained
and held by Western Union are not entitled to Fourth Amendment protection).
The Fourth Amendment “is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). As a result, no violation of the Fourth Amendment occurs when a private individual acting on his own accord conducts a search and makes the results available to law enforcement. See id. For example, in United States v. Hall, 142 F.3d 988 (7th Cir. 1998), the defendant took his computer to a private computer specialist for repairs. In the course of evaluating the defendant’s computer, the repairman observed that many files stored on the computer had filenames characteristic of child pornography. The repairman accessed the files, saw that they did in fact contain child pornography, and then contacted the state police. The tip led to a warrant, the defendant’s arrest, and his conviction for child pornography offenses. On appeal, the Seventh Circuit rejected the defendant’s claim that the repairman’s warrantless search through the computer violated the Fourth Amendment. Because the repairman’s search was conducted on his own, the court held, the Fourth Amendment did not apply to the search or his later description of the evidence to the state police. See id. at 993. See also United States v. Kennedy, 81 F. Supp.2d 1103, 1112 (D. Kan. 2000) (concluding that searches of defendant’s computer over the Internet by an anonymous caller and employees of a private ISP did not violate Fourth Amendment because there was no evidence that the government was involved in the search). In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court presented the framework that should guide agents seeking to uncover evidence as a result of a private search. According to Jacobsen, agents who learn of evidence via a private search can reenact the original private search without violating any reasonable expectation of privacy. What the agents cannot do without a warrant is “exceed[] the scope of the private search.” Id. at 115. See also United States v. Miller, 152 F.3d 813, 815-16 (8th Cir. 1998); United States v. Donnes, 947 F.2d 1430, 1434 (10th Cir. 1991). But see United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1999) (dicta) (stating that Jacobsen does not permit law enforcement to reenact a private search of a private home or residence). This standard requires agents to limit their investigation to the precise scope of the private search when searching without a warrant after a private search has occurred. So long as the agents limit themselves to the scope of the private search, the agents’ search will not violate the Fourth Amendment. However, as soon as agents exceed the scope of the private warrantless search, any evidence uncovered may be suppressed. See United States v. Barth, 26 F. Supp.2d 929, 937 (W.D. Tex. 1998) (suppressing evidence of child pornography found on computer hard drive after agents viewed more files than private technician had initially viewed during repair of defendant’s computer). In computer cases, this aspect of Jacobsen means that private searches will often be useful partly as opportunities to provide the probable cause needed to obtain a warrant for a further search. The fact that a private person has uncovered evidence of a crime on another person’s computer does not permit agents to search the entire computer. Instead, the private search permits the agents to view the evidence that the private search revealed, and, if necessary, to use that evidence as a basis for procuring a warrant to search the rest of the computer.2 Although most private search issues arise when private third parties intentionally examine property and offer evidence of a crime to law enforcement, the same framework applies when third parties inadvertently expose evidence of a crime to plain view. For example, in United States v. Procopio, 88 F.3d 21 (1st Cir. 1996), a defendant stored incriminating files in his brother’s safe. Later, thieves stole the safe, opened it, and abandoned it in a public park. Police investigating the theft of the safe found the files scattered on the ground nearby, gathered them, and then used them against the defendant in an unrelated case. The First Circuit held that the use of the files did not violate the Fourth Amendment, because the files were made openly available by the thieves’ private search. See id. at 26-27 (citing Jacobsen, 466 U.S. at 113). Importantly,
the fact that the person conducting a search is not a government employee does
not necessarily mean that the search is “private” for Fourth Amendment
purposes. A search by a private party will be considered a Fourth Amendment
government search “if the private party act[s] as an instrument or agent
of the Government.” Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602, 614 (1989). The Supreme Court has offered little guidance on
when private conduct can be attributed to the government; the Court has merely
stated that this question “necessarily turns on the degree of the Government’s
participation in the private party’s activities, . . . a question that can
only be resolved ‘in light of all the circumstances.’” Id.
at 614-15 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)). In
the absence of a more definitive standard, the various federal Courts of Appeals
have adopted a range of approaches for distinguishing between private and government
searches. About half of the circuits apply a ‘totality of the circumstances’
approach that examines three factors: whether the government knows of or acquiesces
in the intrusive conduct; whether the party performing the search intends to assist
law enforcement efforts at the time of the search; and whether the government
affirmatively encourages, initiates or instigates the private action. See,
e.g., United States v. Pervaz, 118 F.3d 1, 6 (1st Cir. 1997); United
States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir. 1996); United States
v. McAllister, 18 F.3d 1412, 1417-18 (7th Cir. 1994); United States v.
Malbrough, 922 F.2d 458, 462 (8th Cir. 1990). Other circuits have adopted
more rule-like formulations that focus on only two of these factors. See,
e.g., United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982)
(holding that private action counts as government conduct if, at the time of the
search, the government knew of or acquiesced in the intrusive conduct, and the
party performing the search intended to assist law enforcement efforts); United
States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998) (same); United States
v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985) (holding that a private individual
is a state actor for Fourth Amendment purposes if the police instigated, encouraged
or participated in the search, and the individual engaged in the search with the
intent of assisting the police in their investigative efforts). C. Exceptions to the Warrant Requirement in Cases Involving Computers Warrantless
searches that violate a reasonable expectation of privacy will comply with the
Fourth Amendment if they fall within an established exception to the warrant requirement. Cases
involving computers often raise questions relating to how these “established”
exceptions apply to new technologies. Agents may search a place or object without a warrant or even probable cause if a person with authority has voluntarily consented to the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). This consent may be explicit or implicit. See United States v. Milian-Rodriguez, 759 F.2d 1558, 1563-64 (11th Cir. 1985). Whether consent was voluntarily given is a question of fact that the court must decide by considering the totality of the circumstances. While no single aspect controls the result, the Supreme Court has identified the following important factors: the age, education, intelligence, physical and mental condition of the person giving consent; whether the person was under arrest; and whether the person had been advised of his right to refuse consent. See Schneckloth, 412 U.S. at 226. The government carries the burden of proving that consent was voluntary. See United States v. Price, 599 F.2d 494, 503 (2d Cir. 1979). In computer
crime cases, two consent issues arise particularly often. First, when does
a search exceed the scope of consent? For example, when a target consents
to the search of a machine, to what extent does the consent authorize the retrieval
of information stored in the machine? Second, who is the proper party to
consent to a search? Do roommates, friends, and parents have the authority
to consent to a search of another person’s computer files?3
“The scope of a consent to search is generally defined by its expressed object, and is limited by the breadth of the consent given.” United States v. Pena, 143 F.3d 1363, 1368 (10th Cir. 1998). The standard for measuring the scope of consent under the Fourth Amendment is objective reasonableness: “What would the typical reasonable person have understood by the exchange between the [agent] and the [person granting consent]?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). This requires a fact-intensive inquiry into whether it was reasonable for the agent to believe that the scope of consent included the items searched. Id. Of course, when the limits of the consent are clearly given, either before or during the search, agents must respect these bounds. See Vaughn v. Baldwin, 950 F.2d 331, 333 (6th Cir. 1991).
Computer cases often raise the question of whether consent to search a location or item implicitly includes consent to access the memory of electronic storage devices encountered during the search. In such cases, courts look to whether the particular circumstances of the agents’ request for consent implicitly or explicitly limited the scope of the search to a particular type, scope, or duration. Because this approach ultimately relies on fact-driven notions of common sense, results reached in published opinions have hinged upon subtle (if not entirely inscrutable) distinctions. Compare United States v. Reyes, 922 F. Supp. 818, 834 (S.D.N.Y. 1996) (holding that consent to “look inside” a car included consent to retrieve numbers stored inside pagers found in car’s back seat) with United States v. Blas, 1990 WL 265179, at *20 (E.D. Wis. 1990) (holding that consent to “look at” a pager did not include consent to activate pager and retrieve numbers, because looking at pager could be construed to mean “what the device is, or how small it is, or what brand of pager it may be”). See alsoUnited States v. Carey, 172 F.3d 1268, 1274 (10th Cir. 1999) (reading written consent form extremely narrowly, so that consent to seizure of “any property” under the defendant’s control and to “a complete search of the premises and property” at the defendant’s address merely permitted the agents to seize the defendant’s computer from his apartment, but did not permit them to search the computer off-site because it was no longer located at the defendant’s address). Prosecutors can strengthen their argument that the scope of consent included consent to search electronic storage devices by relying on analogous cases involving closed containers. See, e.g., United States v. Galante, 1995 WL 507249, at *3 (S.D.N.Y. 1995) (holding that general consent to search car included consent to have officer access memory of cellular telephone found in the car, relying on circuit precedent involving closed containers); Reyes, 922 F. Supp. at 834. Agents
should be especially careful about relying on consent as the basis for a search
of a computer when they obtain consent for one reason but then wish to conduct
a search for another reason. In two recent cases, the Courts of Appeals suppressed
images of child pornography found on computers after agents procured the defendant’s
consent to search his property for other evidence. In United States v.
Turner, 169 F.3d 84 (1st Cir. 1999), detectives searching for physical evidence
of an attempted sexual assault obtained written consent from the victim’s
neighbor to search the neighbor’s “premises” and “personal
property.” Before the neighbor signed the consent form, the detectives discovered
a large knife and blood stains in his apartment, and explained to him that they
were looking for more evidence of the assault that the suspect might have left
behind. See id. at 86. While several agents searched for
physical evidence, one detective searched the contents of the neighbor’s
personal computer and discovered stored images of child pornography. The
neighbor was charged with possessing child pornography. On interlocutory
appeal, the First Circuit held that the search of the computer exceeded the scope
of consent and suppressed the evidence. According to the Court, the detectives’
statements that they were looking for signs of the assault limited the scope of
consent to the kind of physical evidence that an intruder might have left behind.
See id. at 88. By transforming the search for physical
evidence into a search for computer files, the detective had exceeded the scope
of consent. See id. See alsoCarey, 172 F.3d at 1277
(Baldock, J., concurring) (concluding that agents exceeded scope of consent by
searching computer after defendant signed broadly-worded written consent form,
because agents told defendant
Because
the decisions evaluating the scope of consent to search computers have reached
sometimes unpredictable results, investigators should indicate the scope of the
search explicitly when obtaining a suspect’s consent to search a computer.
i) General Rules It is common for several people to use or own the same computer equipment. If any one of those people gives permission to search for data, agents may generally rely on that consent, so long as the person has authority over the computer. In such cases, all users have assumed the risk that a co-user might discover everything in the computer, and might also permit law enforcement to search this “common area” as well. The watershed case in this area is United States v. Matlock, 415 U.S. 164 (1974). In Matlock, the Supreme Court stated that one who has “common authority” over premises or effects may consent to a search even if an absent co-user objects. Id. at 171. According to the Court, the common authority that establishes the right of third-party consent requires
Id. at 171 n.7. Under the Matlock approach, a private third party may consent to a search of property under the third party’s joint access or control. Agents may view what the third party may see without violating any reasonable expectation of privacy so long as they limit the search to the zone of the consenting third party’s common authority. See United States v. Jacobsen, 466 U.S. 109, 119 (1984) (noting that the Fourth Amendment is not violated when a private third party invites the government to view the contents of a package under the third party’s control). This rule often requires agents to inquire into third parties’s rights of access before conducting a consent search, and to draw lines between those areas that fall within the third party’s common authority and those areas outside of the third party’s control. See United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (holding that a mother could consent to a general search of her 23-year-old son’s room, but could not consent to a search of a locked footlocker found in the room). Because the joint access test does not require a unity of interests between the suspect and the third party, however, Matlock permits third-party consent even when the target of the search is present and refuses to consent to the search. See United States v. Sumlin, 567 F.2d 684, 687 (6th Cir. 1977) (holding that woman had authority to consent to search of apartment she shared with her boyfriend even though boyfriend refused consent). Courts have not squarely addressed whether a suspect’s decision to password-protect or encrypt files stored in a jointly-used computer denies co-users the right to consent to a search of the files under Matlock. However, it appears likely that encryption and password-protection would in most cases indicate the absence of common authority to consent to a search among co-users who do not know the password or possess the encryption key. Compare United States v. Smith, 27 F. Supp.2d 1111, 1115-16 (C.D. Ill. 1998) (concluding that a woman could consent to a search of her boyfriend’s computer located in their house, and noting that the boyfriend had not password-protected his files) with Block, 590 F.2d at 541 (concluding that a mother could not consent to search of a locked footlocker in her son’s room where she did not possess the key). Conversely, if the co-user has been given the password or encryption key by the suspect, then she probably has the requisite common authority to consent to a search of the files under Matlock. See United States v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (per curiam) (concluding that an employee could consent to a search of an employer’s locked warehouse because the employee possessed the key, and finding “special significance” in the fact that the employer had himself delivered the key to the employee). As
a practical matter, agents may have little way of knowing the precise bounds of
a third party’s common authority when the agents obtain third-party consent
to conduct a search. When queried, consenting third parties may falsely claim
that they have common authority over property. In Illinois v. Rodriguez,
497 U.S. 177 (1990), the Supreme Court held that the Fourth Amendment does not
automatically require suppression of evidence discovered during a consent search
when it later comes to light that the third party who consented to the search
lacked the authority to do so. See id. at 188-89. Instead,
the Court held that agents can rely on a claim of authority to consent if based
on “the facts available to the officer at the moment, . . . a man of reasonable
caution . . . [would believe] that the consenting party had authority” to
consent to a search of the premises. Id. (internal quotations omitted)
(quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). When agents reasonably
rely on apparent authority to consent, the resulting search does not violate the
Fourth Amendment. ii) Spouses and Domestic Partners
Absent
an affirmative showing that the consenting spouse has no access to the property
searched, the courts generally hold that either spouse may consent to search all
of the couple’s property. See, e.g., United States
v. Duran, 957 F.2d 499, 504-05 (7th Cir. 1992) (concluding that wife could
consent to search of barn she did not use because husband had not denied her the
right to enter barn); United States v. Long, 524 F.2d 660, 661 (9th Cir.
1975) (holding that wife who had left her husband could consent to search of jointly-owned
home even though husband had changed the locks). For example, in United
States v. Smith, 27 F. Supp.2d 1111 (C.D. Ill. 1998), a man named Smith was
living with a woman named Ushman and her two daughters. When allegations
of child molestation were raised against Smith, Ushman consented to the search
of his computer, which was located in the house in an alcove connected to the
master bedroom. Although Ushman used Smith’s computer only rarely, the
district court held that she could consent to the search of Smith’s computer. Because
Ushman was not prohibited from entering the alcove and Smith had not password-protected
the computer, the court reasoned, she had authority to consent to the search.
See id. at 1115-16. Even if she lacked actual authority to
consent, the court added, she had apparent authority to consent. See id.
at 1116 (citing Illinois v. Rodriguez). iii) Parents
In some computer crime cases, the perpetrators are relatively young and reside with their parents. When the perpetrator is a minor, parental consent to search the perpetrator’s property and living space will almost always be valid. See 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.4(b) at 283 (2d ed. 1987) (noting that courts have rejected “even rather extraordinary efforts by [minor] child[ren] to establish exclusive use.”). When
the sons and daughters who reside with their parents are legal adults, however,
the issue is more complicated. Under Matlock, it is clear that parents
may consent to a search of common areas in the family home regardless of the perpetrator’s
age. See, e.g., United States v. Lavin, 1992 WL 373486,
at *6 (S.D.N.Y. 1992) (recognizing right of parents to consent to search of basement
room where son kept his computer and files). When agents would like to search
an adult child’s room or other private areas, however, agents cannot assume
that the adult’s parents have authority to consent. Although courts
have offered divergent approaches, they have paid particular attention to three
factors: the suspect’s age; whether the suspect pays rent; and whether the
suspect has taken affirmative steps to deny his or her parents access to the suspect’s
room or private area. When suspects are older, pay rent, and/or deny
access to parents, courts have generally held that parents may not consent. See
United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991) (holding
“cursory questioning” of suspect’s mother insufficient to establish
right to consent to search of 29-year-old son’s room); United States v.
Durham, 1998 WL 684241, at *4 (D. Kan. 1998) (mother had neither apparent
nor actual authority to consent to search of 24-year-old son’s room, because
son had changed the locks to the room without telling his mother, and son also
paid rent for the room). In contrast, parents usually may consent if their
adult children do not pay rent, are fairly young, and have taken no steps to deny
their parents access to the space to be searched. See United States
v. Rith, 164 F.3d 1323, 1331 (10th Cir. 1999) (suggesting that parents are
presumed to have authority to consent to a search of their 18-year-old son’s
room because he did not pay rent); United States v. Block, 590 F.2d 535,
541 (4th Cir. 1978) (mother could consent to police search of 23-year-old son’s
room when son did not pay rent). iv) System Administrators Every computer network is managed by a “system administrator” or “system operator” whose job is to keep the network running smoothly, monitor security, and repair the network when problems arise. System operators have “root level” access to the systems they administer, which effectively grants them master keys to open any account and read any file on their systems. When investigators suspect that a network account contains relevant evidence, they may feel inclined to seek the system administrator’s consent to search the contents of that account. As a practical matter, the primary barrier to searching a network account pursuant to a system administrator’s consent is statutory, not constitutional. System administrators typically serve as agents of “provider[s] of electronic communication service” under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2701-11. ECPA regulates law enforcement efforts to obtain the consent of a system administrator to search an individual’s account. See 18 U.S.C. § 2702-03. Accordingly, any attempt to obtain a system administrator’s consent to search an account must comply with ECPA. See generally Chapter 3, “The Electronic Communications Privacy Act,” infra. To the extent that ECPA authorizes system administrators to consent to searches, the resulting consent searches will in most cases comply with the Fourth Amendment. The first reason is that individuals may not retain a reasonable expectation of privacy in the remotely stored files and records that their network accounts contain. See generally Reasonable Expectation of Privacy and Third Party Possession, supra. If an individual does not retain a constitutionally reasonable expectation of privacy in his remotely stored files, it will not matter whether the system administrator has the necessary joint control over the account needed to satisfy the Matlock test because a subsequent search will not violate the Fourth Amendment. In the event that a court holds that an individual does possess a reasonable expectation of privacy in remotely stored account files, whether a system administrator’s consent would satisfy Matlock should depend on the circumstances. Clearly, the system administrator’s access to all network files does not by itself provide the common authority that triggers authority to consent. In the pre-Matlock case of Stoner v. California, 376 U.S. 483 (1964), the Supreme Court held that a hotel clerk lacked the authority to consent to the search of a hotel room. Although the clerk was permitted to enter the room to perform his duties, and the guest had left his room key with the clerk, the Court concluded that the clerk could not consent to the search. If the hotel guest’s protection from unreasonable searches and seizures “were left to depend on the unfettered discretion of an employee of the hotel,” Justice Stewart reasoned, it would “disappear.” Id. at 490. See also Chapman v. United States, 365 U.S. 610 (1961) (holding that a landlord lacks authority to consent to search of premises used by tenant); United States v. Most, 876 F.2d 191, 199-200 (D.C. Cir. 1989) (holding that store clerk lacks authority to consent to search of packages left with clerk for safekeeping). To the extent that the access of a system operator to a network account is analogous to the access of a hotel clerk to a hotel room, the claim that a system operator may consent to a search of Fourth Amendment-protected files is weak. Cf. Barth, 26 F. Supp.2d at 938 (holding that computer repairman’s right to access files for limited purpose of repairing computer did not create authority to consent to government search through files). Of
course, the hotel clerk analogy may be inadequate in some circumstances. For
example, an employee generally does not have the same relationship with the system
administrator of his company’s network as a customer of a private ISP such
as AOL might have with the ISP’s system administrator. The company may
grant the system administrator of the company network full rights to access employee
accounts for any work-related reason, and the employees may know that the system
administrator has such access. In circumstances such as this, the system administrator
would likely have sufficient common authority over the accounts to be able to
consent to a search. See generally Note, Keeping Secrets
in Cyberspace: Establishing Fourth Amendment Protection for Internet Communication,
110 Harv. L. Rev. 1591, 1602-03 (1997). See also United States
v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993) (holding that a drug courier hired
to transport the defendant’s locked toolbox containing drugs had common authority
under Matlock to consent to a search of the toolbox stored in the courier’s
trunk). Further, in the case of a government network, the Fourth Amendment
rules would likely differ dramatically from the rules that apply to private networks.
See generally O’Connor v. Ortega, 480 U.S. 709 (1987)
(explaining how the Fourth Amendment applies within government workplaces) (discussed
infra). Individuals often enter into agreements with the government in which they waive some of their Fourth Amendment rights. For example, prison guards may agree to be searched for drugs as a condition of employment, and visitors to government buildings may agree to a limited search of their person and property as a condition of entrance. Similarly, users of computer systems may waive their rights to privacy as a condition of using the systems. When individuals who have waived their rights are then searched and challenge the searches on Fourth Amendment grounds, courts typically focus on whether the waiver eliminated the individual’s reasonable expectation of privacy against the search. See, e.g., American Postal Workers Union, Columbus Area Local AFL-CIO v. United States Postal Service, 871 F.2d 556, 56-61 (6th Cir. 1989) (holding that postal employees retained no reasonable expectation of privacy in government lockers after signing waivers). A few courts have approached the same problem from a slightly different direction and have asked whether the waiver established implied consent to the search. According to the doctrine of implied consent, consent to a search may be inferred from an individual’s conduct. For example, in United States v. Ellis, 547 F.2d 863 (5th Cir. 1977), a civilian visiting a naval air station agreed to post a visitor’s pass on the windshield of his car as a condition of bringing the car on the base. The pass stated that “[a]cceptance of this pass gives your consent to search this vehicle while entering, aboard, or leaving this station.” Id. at 865 n.1. During the visitor’s stay on the base, a station investigator who suspected that the visitor had stored marijuana in the car approached the visitor and asked him if he had read the pass. After the visitor admitted that he had, the investigator searched the car and found 20 plastic bags containing marijuana. The Fifth Circuit ruled that the warrantless search of the car was permissible, because the visitor had impliedly consented to the search when he knowingly and voluntarily entered the base with full knowledge of the terms of the visitor’s pass. See id. at 866-67. Ellis
notwithstanding, it must be noted that several circuits have been critical of
the implied consent doctrine in the Fourth Amendment context. Despite the
Fifth Circuit’s broad construction, other courts have proven reluctant to
apply the doctrine absent evidence that the suspect actually knew of the search
and voluntarily consented to it at the time the search occurred. See McGann
v. Northeast Illinois Regional Commuter R.R. Corp., 8 F.3d 1174, 1179 (7th
Cir. 1993) (“Courts confronted with claims of implied consent have been reluctant
to uphold a warrantless search based simply on actions taken in the light of a
posted notice.”); Securities and Law Enforcement Employees, District Council
82 v. Carey, 737 F.2d 187, 202 n.23 (2d Cir. 1984) (rejecting argument that
prison guards impliedly consented to search by accepting employment at prison
where consent to search was a condition of employment). Absent such evidence,
these courts have preferred to examine general waivers of Fourth Amendment rights
solely under the reasonable-expectation-of-privacy test. See id.
Under the “exigent circumstances” exception to the warrant requirement, agents can search without a warrant if the circumstances “would cause a reasonable person to believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” See United States v. Alfonso, 759 F.2d 728, 742 (9th Cir. 1985). In determining whether exigent circumstances exist, agents should consider: (1) the degree of urgency involved, (2) the amount of time necessary to obtain a warrant, (3) whether the evidence is about to be removed or destroyed, (4) the possibility of danger at the site, (5) information indicating the possessors of the contraband know the police are on their trail, and (6) the ready destructibility of the contraband. See United States v. Reed, 935 F.2d 641, 642 (4th Cir. 1991). Exigent circumstances often arise in computer cases because electronic data is perishable. Computer commands can destroy data in a matter of seconds, as can humidity, temperature, physical mutilation, or magnetic fields created, for example, by passing a strong magnet over a disk. For example, in United States v. David, 756 F. Supp. 1385 (D. Nev. 1991), agents saw the defendant deleting files on his computer memo book, and seized the computer immediately. The district court held that the agents did not need a warrant to seize the memo book because the defendant’s acts had created exigent circumstances. See id. at 1392. Similarly, in United States v. Romero-Garcia, 991 F. Supp. 1223, 1225 (D. Or. 1997), aff’d on other grounds 168 F.3d 502 (9th Cir. 1999), a district court held that agents had properly accessed the information in an electronic pager in their possession because they had reasonably believed that it was necessary to prevent the destruction of evidence. The information stored in pagers is readily destroyed, the court noted: incoming messages can delete stored information, and batteries can die, erasing the information. Accordingly, the agents were justified in accessing the pager without first acquiring a warrant. See id. See also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (in conducting search incident to arrest, agents were justified in retrieving numbers from pager because pager information is easily destroyed). Of course, in computer cases, as in all others, the existence of exigent circumstances is absolutely tied to the facts. Compare Romero-Garcia, 911 F. Supp. at 1225 with David, 756 F. Supp at 1392 n.2 (dismissing as “lame” the government’s argument that exigent circumstances supported search of a battery-operated computer because the agent did not know how much longer the computer’s batteries would live) and United States v. Reyes, 922 F. Supp. 818, 835-36 (S.D.N.Y. 1996) (concluding that exigent circumstances could not justify search of a pager because the government agent unlawfully created the exigency by turning on the pager). Importantly,
the existence of exigent circumstances does not permit agents to search or seize
beyond what is necessary to prevent the destruction of the evidence. When
the exigency ends, the right to conduct warrantless searches does as well: the
need to take certain steps to prevent the destruction of evidence does not authorize
agents to take further steps without a warrant. See United States
v. Doe, 61 F.3d 107, 110-11 (1st Cir. 1995). Accordingly, the seizure
of computer hardware to prevent the destruction of information it contains will
not ordinarily support a subsequent search of that information without a warrant. See
David, 756 F. Supp. at 1392. Evidence of a crime may be seized without a warrant under the plain view exception to the warrant requirement. To rely on this exception, the agent must be in a lawful position to observe and access the evidence, and its incriminating character must be immediately apparent. See Horton v. California, 496 U.S. 128 (1990). For example, if an agent conducts a valid search of a hard drive and comes across evidence of an unrelated crime while conducting the search, the agent may seize the evidence under the plain view doctrine.
Importantly, the plain view exception cannot justify violations of an individual’s reasonable expectation of privacy. The exception merely permits the seizure of evidence that has already been viewed in accordance with the Fourth Amendment. In computer cases, this means that the government cannot rely on the plain view exception to justify opening a closed computer file.4 The contents of a file that must be opened to be viewed are not in ‘plain view.’ See United States v. Maxwell, 45 M.J. 406, 422 (C.A.A.F. 1996). This rule accords with decisions applying the plain view exception to closed containers. See, e.g., United States v. Villarreal, 963 F.2d 770, 776 (5th Cir. 1992) (concluding that labels fixed to opaque 55-gallon drums do not expose the contents of the drums to plain view). (“[A] label on a container is not an invitation to search it. If the government seeks to learn more than the label reveals by opening the container, it generally must obtain a search warrant.”). United
States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999), provides a useful example. In
Carey, a police detective searching a hard drive with a warrant for drug
trafficking evidence opened a “jpg” file and instead discovered child
pornography. At that point, the detective abandoned the search for drug trafficking
evidence and spent five hours accessing and downloading several hundred “jpg”
files in a search for more child pornography. When the defendant moved to
exclude the child pornography files on the ground that they were seized beyond
the scope of the warrant, the government argued that the detective had seized
the “jpg” files properly because the contents of the contraband files
were in plain view. The Tenth Circuit rejected this argument with respect
to all of the files except for the first “jpg” file the detective discovered. See
id. at 1273, 1273 n.4. Although the court’s reasoning is somewhat
opaque, this aspect of Carey seems sensible. The plain view exception
permits agents to seize property found in plain view, not to infringe a suspect’s
right to privacy until his property comes into plain view. As a result, the
detective could seize the first “jpg” file that came into plain view
when the detective was executing the search warrant, but could not rely on the
plain view exception to justify the search for additional “jpg” files
on the defendant’s computers that were beyond the scope of the warrant. 4. Search Incident to a Lawful Arrest Pursuant to a lawful arrest, agents may conduct a “full search” of the arrested person, and a more limited search of his surrounding area, without a warrant. See United States v. Robinson, 414 U.S. 218, 235 (1973); Chimel v. California, 395 U.S. 752, 762-63 (1969). For example, in Robinson, a police officer conducting a patdown search incident to an arrest for a traffic offense discovered a crumpled cigarette package in the suspect’s left breast pocket. Not knowing what the package contained, the officer opened the package and discovered fourteen capsules of heroin. The Supreme Court held that the search of the package was permissible, even though the officer had no articulable reason to open the package. See id. at 234-35. In light of the general need to preserve evidence and prevent harm to the arresting officer, the Court reasoned, it was perse reasonable for an officer to conduct a “full search of the person” pursuant to a lawful arrest. Id. at 235. Due to the increasing use of handheld and portable computers and other electronic storage devices, agents often encounter computers when conducting searches incident to lawful arrests. Suspects may be carrying pagers, Personal Digital Assistants (such as Palm Pilots), or even laptop computers when they are arrested. Does the search-incident-to-arrest exception permit an agent to access the memory of an electronic storage device found on the arrestee’s person during a warrantless search incident to arrest? In the case of electronic pagers, the answer clearly is “yes.” Relying on Robinson, courts have uniformly permitted agents to access electronic pagers carried by the arrested person at the time of arrest. See United States v. Reyes, 922 F. Supp. 818, 833 (S.D.N.Y. 1996) (holding that accessing numbers in a pager found in bag attached to defendant’s wheelchair within twenty minutes of arrest falls within search-incident-to-arrest exception); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995); Yu v. United States, 1997 WL 423070 (S.D.N.Y. 1997); United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (dicta). See also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (same holding, but relying on an exigency theory). Courts have not yet addressed whether Robinson will permit warrantless searches of electronic storage devices that contain more information than pagers. In the paper world, certainly, cases have allowed extensive searches of written materials discovered incident to lawful arrests. For example, courts have uniformly held that agents may inspect the entire contents of a suspect’s wallet found on his person. See, e.g., United States v. Castro, 596 F.2d 674, 676 (5th Cir. 1979); United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir. 1989) (citing cases). Similarly, one court has held that agents could photocopy the entire contents of an address book found on the defendant’s person during the arrest, see United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), and others have permitted the search of a defendant’s briefcase that was at his side at the time of arrest. See, e.g., United States v. Johnson, 846 F.2d 279, 283-84 (5th Cir. 1988); United States v. Lam Muk Chiu, 522 F.2d 330, 332 (2d Cir. 1975). If agents can examine the contents of wallets, address books, and briefcases without a warrant, it could be argued that they should be able to search their electronic counterparts (such as electronic organizers, floppy disks, and Palm Pilots) as well. Cf. United v. Tank, 200 F.3d 627, 632 (9th Cir. 2000) (holding that agents searching a car incident to a valid arrest properly seized a Zip disk found in the car, but failing to discuss whether the agents obtained a warrant before searching the disk for images of child pornography). The
limit on this argument is that any search incident to an arrest must be reasonable. See
Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997). While a search of
physical items found on the arrestee’s person may always be reasonable, more
invasive searches in different circumstances may violate the Fourth Amendment. See,
e.g. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1269-71 (7th
Cir. 1983) (holding that Robinson does not permit strip searches incident
to arrest because such searches are not reasonable in context). For example,
the increasing storage capacity of handheld computers suggests that Robinson’s
bright line rule may not always apply in the case of electronic searches. Courts
may conclude that a quick search through a pager that stores a few phone numbers
is reasonable incident to an arrest, but that a very time-consuming search through
a handheld computer that contains an entire warehouse of information presents
a different case. Cf. United States v. O’Razvi, 1998 WL 405048, at
*7 n.7 (S.D.N.Y. 1998). When in doubt, agents should obtain a search warrant
before examining the contents of electronic storage devices that might contain
large amounts of information. Law enforcement officers routinely inventory the items they have seized. Such “inventory searches” are reasonable — and therefore fall under an exception to the warrant requirement — when two conditions are met. First, the search must serve a legitimate, non-investigatory purpose (e.g., to protect an owner’s property while in custody; to insure against claims of lost, stolen, or vandalized property; or to guard the police from danger) that outweighs the intrusion on the individual’s Fourth Amendment rights. See Illinois v. Lafayette, 462 U.S. 640, 644 (1983); South Dakota v. Opperman, 428 U.S. 364, 369 (1976). Second, the search must follow standardized procedures. See Colorado v. Bertine, 479 U.S. 367, 374 n.6 (1987); Florida v. Wells, 495 U.S. 1, 4-5 (1990). It
is unlikely that the inventory-search exception to the warrant requirement would
support a search through seized computer files. See O’Razvi,
1998 WL 405048, at *6-7 (noting the difficulties of applying the inventory-search
requirements to computer disks). Even assuming that standard procedures authorized
such a search, the legitimate purposes served by inventory searches in the physical
world do not translate well into the intangible realm. Information does not
generally need to be reviewed to be protected, and does not pose a risk of physical
danger. Although an owner could claim that his computer files were altered
or deleted while in police custody, examining the contents of the files would
offer little protection from tampering. Accordingly, agents will generally need
to obtain a search warrant in order to examine seized computer files held in custody.
In order to protect the government’s ability to monitor contraband and other property that may enter or exit the United States illegally, the Supreme Court has recognized a special exception to the warrant requirement for searches that occur at the border of the United States. According to the Court, “routine searches” at the border or its functional equivalent do not require a warrant, probable cause, or even reasonable suspicion that the search may uncover contraband or evidence. United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). Searches that are especially intrusive require at least reasonable suspicion, however. See id.. at 541. These rules apply to people and property both entering and exiting the United States. See United States v. Oriakhi, 57 F.3d 1290, 1297 (4th Cir. 1995). At least one court has interpreted the border search exception to permit a warrantless search of a computer disk for contraband computer files. In United States v. Roberts, 86 F. Supp.2d 678 (S.D. Tex. 2000), United States Customs Agents learned that William Roberts, a suspect believed to be carrying computerized images of child pornography, was scheduled to fly from Houston, Texas to Paris, France on a particular day. On the day of the flight, the agents set up an inspection area in the jetway at the Houston airport with the sole purpose of searching Roberts. Roberts arrived at the inspection area and was told by the agents that they were searching for “currency” and “high technology or other data” that could not be exported legally. Id. at 681. After the agents searched Roberts’ property and found a laptop computer and six Zip diskettes, Roberts agreed to sign a consent form permitting the agents to search his property. A subsequent search revealed several thousand images of child pornography. See id. at 682. When charges were brought, Roberts moved for suppression of the computer files, but the district court ruled that the search had not violated the Fourth Amendment. According to the court, the search of Roberts’ luggage had been a “routine search” for which no suspicion was required, even though the justification for the search offered by the agents merely had been a pretext. See id. at 686 (citing Whren v. United States, 517 U.S. 806 (1996)). The court also concluded that Roberts’ consent justified the search of the laptop and diskettes, and indicated that even if Roberts had not consented to the search, “[t]he search of the defendant’s computer and diskettes would have been a routine export search, valid under the Fourth Amendment.” See Roberts, 98 F. Supp.2d at 688. Importantly,
agents and prosecutors should not interpret Roberts as permitting the interception
of data transmitted electronically to and from the United States. Any real-time
interception of electronically transmitted data in the United States must comply
strictly with the requirements of Title III, 18 U.S.C. §§ 2510-22. See
generally Chapter 4. Further, once electronically transferred data
from outside the United States arrives at its destination within the United States,
the government ordinarily cannot rely on the border search exception to search
for and seize the data because the data is no longer at the border or its functional
equivalent. Cf.Almeida-Sanchez v. United States, 413 U.S. 266, 273-74 (1973)
(concluding that a search that occurred 25 miles from the United States border
did not qualify for the border search exception, even though the search occurred
on a highway known as a common route for illegal aliens, because it did not occur
at the border or its functional equivalent). Outside the United States border, searching and seizing electronic evidence raises difficult questions of both law and policy. Because the Internet is a global network, international issues may arise in many cases; even a domestic investigation may involve a computer system, data, witness or subject located in a foreign jurisdiction. In such cases, the Fourth Amendment may or may not apply, depending on the circumstances. See generally United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (considering the extent to which the Fourth Amendment applies to searches outside of the United States). However, international policies regarding sovereignty and privacy may require the United States to take actions ranging from informal notice to a formal request for assistance to the country concerned. This manual will not attempt to provide detailed guidance on how to resolve international issues that arise in such cases. Investigators and prosecutors should contact the Office of International Affairs at (202) 514-0000 for assistance. However, a few basic principles can be stated here. The United States maintains approximately 40 bilateral mutual legal assistance treaty relationships and many other relationships pursuant to letters rogatory or other longstanding means of cooperation. While cooperation with respect to computer and electronic evidence is under further development internationally, these treaty structures and ongoing relationships continue to provide the legal and practical means by which the United States both seeks and provides legal assistance. When agents learn prior to a search that some of all of the data to be searched is located in a foreign jurisdiction, they should seek advice from the Office of International Affairs as to the need for and appropriate means to seek assistance from that country. When immediate international assistance is required, the international network of 24-hour Points of Contact established by the High-tech Crime Subgroup of the G-8 countries can provide assistance, such as preserving data and assisting in real-time tracing of cross-border communications. See generally Michael A. Sussmann, The Critical Challenges from International High-Tech and Computer-Related Crime at the Millennium, 9 Duke J. Comp. & Int’l L. 451, 484 (1999). The network is available twenty-four hours a day to respond to urgent requests for assistance in international high-tech crime investigations, or cases involving electronic evidence. The membership currently includes Australia, Brazil, Canada, Denmark, Finland, France, Germany, Italy, Japan, Republic of Korea, Luxembourg, Russia, Spain, Sweden, United Kingdom, and the United States, and continues to grow. The Point of Contact for the United States is CCIPS, which can be contacted at (202) 514-1026 during regular business hours, or, after hours, through the DOJ Command Center at (202) 514-5000. CCIPS also has computer crime law enforcement contacts in countries beyond members of the network; agents and prosecutors can call CCIPS for assistance. Finally,
international issues may also arise when the United States responds to foreign
requests for international legal assistance for computer and electronic evidence. Investigators
and prosecutors can the Office of International Affairs ((202) 514-0000) or CCIPS
for additional advice. D. Special Case: Workplace Searches Warrantless workplace searches deserve a separate analysis because they occur often in computer cases and raise unusually complicated legal issues. The primary cause of the analytical difficulty is the Supreme Court’s complex decision in O’Connor v. Ortega, 480 U.S. 709 (1987). Under O’Connor, the legality of warrantless workplace searches depends on often-subtle factual distinctions such as whether the workplace is public sector or private sector, whether employment policies exist that authorize a search, and whether the search is work-related. Every warrantless workplace search must be evaluated carefully on its facts. In general, however, law enforcement officers can conduct a warrantless search of private (i.e., non-government) workplaces only if the officers obtain the consent of either the employer or another employee with common authority over the area searched. In public (i.e., government) workplaces, officers cannot rely on an employer’s consent, but can conduct searches if written employment policies or office practices establish that the government employees targeted by the search cannot reasonably expect privacy in their workspace. Further, government employers and supervisors can conduct reasonable work-related searches of employee workspaces without a warrant even if the searches violate employees’ reasonable expectation of privacy. One
cautionary note is in order before we proceed. This discussion evaluates
the legality of warrantless workplace searches of computers under the Fourth Amendment. In
many cases, however, workplace searches will implicate federal privacy statutes
in addition to the Fourth Amendment. For example, efforts to obtain an employee’s
files and e-mail from the employer’s network server raise issues under
the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701-11 (discussed
in Chapter 3), and workplace monitoring of an employee’s Internet use implicates
Title III, 18 U.S.C. §§ 2510-22 (discussed in Chapter 4). Before
conducting a workplace search, investigators must make sure that their search
will not violate either the Fourth Amendment or relevant federal privacy statutes. Investigators
should contact CCIPS at (202) 514-1026 or the CTC in their district for further
assistance. 1. Private Sector Workplace Searches The rules for
conducting warrantless searches and seizures in private-sector workplaces generally
mirror the rules for conducting warrantless searches in homes and other personal
residences. Private company employees generally retain a reasonable expectation
of privacy in their workplaces. As a result, private-workplace searches by law
enforcement will usually require a warrant unless the agents can obtain the consent
of an employer or a co-worker with common authority. a) Reasonable Expectation of Privacy in Private-Sector Workplaces Private-sector
employees will usually retain a reasonable expectation of privacy in their office
space. In Mancusi v. DeForte, 392 U.S. 364 (1968), police officers
conducted a warrantless search of an office at a local union headquarters that
defendant Frank DeForte shared with several other union officials. In response
to DeForte’s claim that the search violated his Fourth Amendment rights,
the police officers argued that the joint use of the space by DeForte’s co-workers
made his expectation of privacy unreasonable. The Court disagreed, stating
that DeForte “still could reasonably have expected that only [his officemates]
and their personal or business guests would enter the office, and that records
would not be touched except with their permission or that of union higher-ups.”
Id. at 369. Because only a specific group of people actually enjoyed
joint access and use of DeForte’s office, the officers’ presence violated
DeForte’s reasonable expectation of privacy. See id. See
also United States v. Most, 876 F.2d 191, 198 (D.C. Cir. 1989) (“[A]n
individual need not shut himself off from the world in order to retain his fourth
amendment rights. He may invite his friends into his home but exclude the
police; he may share his office with co-workers without consenting to an official
search.”); United States v. Lyons, 706 F.2d 321, 325 (D.C. Cir. 1983)
(“One may freely admit guests of one’s choosing — or be legally
obligated to admit specific persons — without sacrificing one’s right
to expect that a space will remain secure against all others.”). As
a practical matter, then, private employees will generally retain an expectation
of privacy in their work space unless that space is “open to the world at
large.” Id. at 326. b) Consent in Private Sector-Workplaces Although most non-government workplaces will support a reasonable expectation of privacy from a law enforcement search, agents can defeat this expectation by obtaining the consent of a party who exercises common authority over the area searched. See Matlock, 415 U.S. at 171. In practice, this means that agents can often overcome the warrant requirement by obtaining the consent of the target’s employer or supervisor. Depending on the facts, a co-worker’s consent may suffice as well. Private-sector employers and supervisors generally enjoy a broad authority to consent to searches in the workplace. For example, in United States v. Gargiso, 456 F.2d 584 (2d Cir. 1972), a pre-Matlock case, agents conducting a criminal investigation of an employee of a private company sought access to a locked, wired-off area in the employer’s basement. The agents explained their needs to the company’s vice-president, who took the agents to the basement and opened the basement with his key. When the employee attempted to suppress the evidence that the agents discovered in the basement, the court held that the vice-president’s consent was effective. Because the vice-president shared supervisory power over the basement with the employee, the court reasoned, he could consent to the agents’ search of that area. Id. at 586-87. See also United States v. Bilanzich, 771 F.2d 292, 296-97 (7th Cir. 1985) (holding that the owner of a hotel could consent to search of locked room used by hotel employee to store records, even though owner did not carry a key, because employee worked at owner’s bidding); J.L. Foti Constr. Co. v. Donovan, 786 F.2d 714, 716-17 (6th Cir. 1986) (per curiam) (holding that a general contractor’s superintendent could consent to an inspection of an entire construction site, including subcontractor’s work area). In a close case, an employment policy or computer network banner that establishes the employer’s right to consent to a workplace search can help establish the employer’s common authority to consent under Matlock. See Appendix A. Agents
should be careful about relying on a co-worker’s consent to conduct a workplace
search. While employers generally retain the right to access their employees’
work spaces, co-workers may or may not, depending on the facts. When co-workers
do exercise common authority over a workspace, however, investigators can rely
on a co-worker’s consent to search that space. For example, in United
States v. Buettner-Janusch, 646 F.2d 759 (2d Cir. 1981), a professor and an
undergraduate research assistant at New York University consented to a search
of an NYU laboratory managed by a second professor suspected of using his laboratory
to manufacture LSD and other drugs. Although the search involved opening
vials and several other closed containers, the Second Circuit held that Matlock
authorized the search because both consenting co-workers had been authorized to
make full use of the lab for their research. See id. at 765-66. See
also United States v. Jenkins, 46 F.3d 447, 455-58 (5th Cir. 1995)
(allowing an employee to consent to a search of the employer’s property);
United States v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (per curiam)
(same); United States v. Longo, 70 F. Supp.2d 225, 256 (W.D.N.Y. 1999)
(allowing secretary to consent to search of employer’s computer). But
see United States v. Buitrago Pelaez, 961 F. Supp. 64, 67-68 (S.D.N.Y.
1997) (holding that a receptionist could consent to a general search of the office,
but not of a locked safe to which receptionist did not know the combination).
c) Employer Searches in Private-Sector Workplaces Warrantless
workplace searches by private employers rarely violate the Fourth Amendment. So
long as the employer is not acting as an instrument or agent of the Government
at the time of the search, the search is a private search and the Fourth Amendment
does not apply. See Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602, 614 (1989). 2. Public-Sector Workplace Searches Although
warrantless computer searches in private-sector workplaces follow familiar Fourth
Amendment rules, the application of the Fourth Amendment to public-sector workplace
searches of computers presents a different matter. In O’Connor v.
Ortega, 480 U.S. 709 (1987), the Supreme Court introduced a distinct framework
for evaluating warrantless searches in government workplaces that applies to computer
searches. According to O’Connor, a government employee can enjoy
a reasonable expectation of privacy in his workplace. See id.
at 717 (O’Connor, J., plurality opinion); Id. at 721 (Scalia, J.,
concurring). However, an expectation of privacy becomes unreasonable if “actual
office practices and procedures, or . . . legitimate regulation” permit the
employee’s supervisor, co-workers, or the public to enter the employee’s
workspace. Id. at 717 (O’Connor, J., plurality opinion). Further,
employers can conduct “reasonable” warrantless searches even if
the searches violate an employee’s reasonable expectation of privacy. Such
searches include work-related, noninvestigatory intrusions (e.g., entering an
employee’s locked office to retrieve a file) and reasonable investigations
into work-related misconduct. See id. at 725-26 (O’Connor,
J., plurality opinion); Id. at 732 (Scalia, J., concurring). a) Reasonable Expectation of Privacy in Public Workplaces The reasonable expectation of privacy test formulated by the O’Connor plurality asks whether a government employee’s workspace is “so open to fellow employees or to the public that no expectation of privacy is reasonable.” O’Connor, 480 U.S. at 718 (plurality opinion). This standard differs significantly from the standard analysis applied in private workplaces. Whereas private-sector employees enjoy a reasonable expectation of privacy in their workspace unless the space is “open to the world at large,” Lyons, 706 F.2d at 326, government employees retain a reasonable expectation of privacy in the workplace only if a case-by-case inquiry into “actual office practices and procedures” shows that it is reasonable for employees to expect that others will not enter their space. See O’Connor, 480 U.S. at 717 (plurality opinion); Rossi v. Town of Pelham, 35 F. Supp.2d. 58, 63 (D.N.H. 1997). See also O’Connor, 480 U.S. at 730-31 (Scalia, J., concurring) (noting the difference between the expectation-of-privacy analysis offered by the O’Connor plurality and that traditionally applied in private workplace searches). From a practical standpoint, then, public employees are less likely to retain a reasonable expectation of privacy against government searches at work than are private employees. Courts evaluating public employees’ reasonable expectation of privacy in the wake of O’Connor have considered the following factors: whether the work area in question is assigned solely to the employee; whether others have access to the space; whether the nature of the employment requires a close working relationship with others; whether office regulations place employees on notice that certain areas are subject to search; and whether the property searched is public or private. See Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 179-80 (1st Cir. 1997) (summarizing cases); United States v. Mancini, 8 F.3d 104, 109 (1st Cir. 1993). In general, the courts have rejected claims of an expectation of privacy in an office when the employee knew or should have known that others could access the employee’s workspace. See e.g., Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir. 1994) (holding that judge’s search through his law clerk’s desk and file cabinets did not violate the clerk’s reasonable expectation of privacy because of the clerk’s close working relationship with the judge); Schowengerdt v. United States, 944 F.2d 483, 488 (9th Cir. 1991) (holding that civilian engineer employed by the Navy who worked with classified documents at an ordinance plant had no reasonable expectation of privacy in his office because investigators were known to search employees’ offices for evidence of misconduct on a regular basis). But see United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991) (concluding in dicta that public employee retained expectation of privacy in office shared with several co-workers). In contrast, the courts have found that a search violates a public employee’s reasonable expectation of privacy when the employee had no reason to expect that others would access the space searched. See O’Connor, 480 U.S. at 718-19 (plurality) (holding that physician at state hospital retained expectation of privacy in his desk and file cabinets where there was no evidence that other employees could enter his office and access its contents); Rossi, 35 F. Supp.2d at 64 (holding that town clerk enjoyed reasonable expectation of privacy in 8' x 8' office that the public could not access and other town employees did not enter). While agents must evaluate whether a public employee retains a reasonable expectation of privacy in the workplace on a case-by-case basis, official written employment policies can simplify the task dramatically. See O’Connor, 480 U.S. at 717 (plurality) (noting that “legitimate regulation” of the work place can reduce public employees’ Fourth Amendment protections). Courts have uniformly deferred to public employers’ official policies that expressly authorize access to the employee’s workspace, and have relied on such policies when ruling that the employee cannot retain a reasonable expectation of privacy in the workplace. See American Postal Workers Union, Columbus Area Local AFL-CIO v. United States Postal Serv., 871 F.2d 556, 56-61 (6th Cir. 1989) (holding that postal employees retained no reasonable expectation of privacy in contents of government lockers after signing waivers stating that lockers were subject to inspection at any time, even though lockers contained personal items); United States v. Bunkers, 521 F.2d 1217, 1219-1220 (9th Cir. 1975) (same, noting language in postal manual stating that locker is “subject to search by supervisors and postal inspectors”). Of course, whether a specific policy eliminates a reasonable expectation of privacy is a factual question. Employment policies that do not explicitly address employee privacy may prove insufficient to eliminate Fourth Amendment protection. See, e.g., Taketa, 923 F.2d at 672-73 (concluding that regulation requiring DEA employees to “maintain clean desks” did not defeat workplace expectation of privacy of non-DEA employee assigned to DEA office).
Written employment policies and “banners” are particularly important in cases that consider whether government employees enjoy a reasonable expectation of privacy in government computers. Banners are written notices that greet users before they log on to a computer or computer network, and can inform users of the privacy rights that they do or do not retain in their use of the computer or network. See generally Appendix A. In general, government employees who are notified that their employer has retained rights to access or inspect information stored on the employer’s computers can have no reasonable expectation of privacy in the information stored there. For example, in United States v. Simons, 206 F.3d 392 (4th Cir. 2000), computer specialists at a division of the Central Intelligence Agency learned that an employee named Mark Simons had been using his desktop computer at work to obtain pornography available on the Internet, in violation of CIA policy. The computer specialists accessed Simons’ computer remotely without a warrant, and obtained copies of over a thousands picture files that Simons had stored on his hard drive. Many of these picture files contained child pornography, which were turned over to law enforcement. When Simons filed a motion to suppress the fruits of the remote search of his hard drive, the Fourth Circuit held that the CIA division’s official Internet usage policy eliminated any reasonable expectation of privacy that Simons might otherwise have in the copied files. See id. at 398. The policy stated that the CIA division would “periodically audit, inspect, and/or monitor [each] user’s Internet access as deemed appropriate,” and that such auditing would be implemented “to support identification, termination, and prosecution of unauthorized activity.” Id. at 395-96. Simons did not deny that he was aware of the policy. See id.v at 398 n.8. In light of the policy, the Fourth Circuit held, Simons did not retain a reasonable expectation of privacy “with regard to the record or fruits of his Internet use,” including the files he had downloaded. Id. at 398. Other courts have agreed with the approach articulated in Simons and have held that banners and policies generally eliminate a reasonable expectation of privacy in contents stored in a government employee’s network account. See Wasson v. Sonoma County Junior College, 4 F. Supp.2d 893, 905-06 (N.D. Cal. 1997) (holding that public employer’s computer policy giving the employer “the right to access all information stored on [the employer’s] computers” defeats an employee’s reasonable expectation of privacy in files stored on employer’s computers); Bohach v. City of Reno, 932 F. Supp. 1232, 1235 (D. Nev. 1996) (holding that police officers did not retain a reasonable expectation of privacy in their use of a pager system, in part because the Chief of Police had issued an order announcing that all messages would be logged); United States v. Monroe, 52 M.J. 326 (C.A.A.F. 2000) (holding that Air Force sergeant did not have a reasonable expectation of privacy in his government e-mail account because e-mail use was reserved for official business and network banner informed each user upon logging on to the network that use was subject to monitoring). But see DeMaine v. Samuels, 2000 WL 1658586, at *7 (D. Conn. 2000) (suggesting that the existence of an employment manual explicitly authorizing searches “weighs heavily” in the determination of whether a government employee retained a reasonable expectation of privacy at work, but “does not, on its own, dispose of the question”). Of
course, whether a specific policy eliminates a reasonable expectation of privacy
is a factual question. Agents and prosecutors must consider whether a given
policy is sufficiently broad that it reasonably contemplates the search to be
conducted. If the policy is narrow, it may not waive the government employee’s
reasonable expectation of privacy against the search that the government plans
to execute. For example, in Simons, the Fourth Circuit concluded that
although the CIA division’s Internet usage policy eliminated Simons’
reasonable expectation of privacy in the fruits of his Internet use, it did not
eliminate his reasonable expectation of privacy in the physical confines of his
office. See Simons, 206 F.3d at 399 n.10. Accordingly,
the policy by itself was insufficient to justify a physical entry into Simons’
office. See id. at 399. See also Taketa,
923 F.2d at 672-73 (concluding that regulation requiring DEA employees to “maintain
clean desks” did not defeat workplace expectation of privacy of non-DEA employee
assigned to DEA office). Sample banners appear in Appendix A. b) “Reasonable” Workplace Searches Under O’Connor v. Ortega
In most circumstances, a warrant must be obtained before a government actor can conduct a search that violates an individual’s reasonable expectation of privacy. In the context of government employment, however, the government’s role as an employer (as opposed to its role as a law-enforcer) presents a special case. In O’Connor, the Supreme Court held that a public employer or the employer’s agent can conduct a workplace search that violates a public employee’s reasonable expectation of privacy so long as the search is “reasonable.” See O’Connor, 480 U.S. at 722-23 (plurality); Id. at 732 (Scalia, J., concurring). The Court’s decision adds public workplace searches by employers to the list of “special needs” exceptions to the warrant requirement. The “special needs” exceptions permit the government to dispense with the usual warrant requirement when its officials infringe upon protected privacy rights in the course of acting in a non-law enforcement capacity. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring) (applying the “special needs” exception to permit public school officials to search student property without a warrant in an effort to maintain discipline and order in public schools); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989) (applying the “special needs” exception to permit warrantless drug testing of Customs employees who seek promotions to positions where they would handle sensitive information). In these cases, the Court has held that the need for government officials to pursue legitimate non-law-enforcement aims justifies a relaxing of the warrant requirement because “the burden of obtaining a warrant is likely to frustrate the [non-law-enforcement] governmental purpose behind the search.” O’Connor, 480 U.S. at 720 (quoting Camara v. Municipal Court, 387 U.S. 523, 533 (1967)). According
to O’Connor, a warrantless search must satisfy two requirements to
qualify as “reasonable.” First, the employer or his agents must
participate in the search for a work-related reason, rather than merely to obtain
evidence for use in criminal proceedings. Second, the search must be justified
at its inception and permissible in its scope. i) The Search Must Be Work-Related The first element of O’Connor’s reasonableness test requires that the employer or his agents must participate in the search for a work-related reason, rather than merely to obtain evidence for use in criminal proceedings. See O’Connor, 480 U.S. at 721. This element limits the O’Connor exception to circumstances in which the government actors who conduct the search act in their capacity as employers, rather than law enforcers. The O’Connor Court specified two such circumstances. First, the Court concluded that public employers can conduct reasonable work-related noninvestigatory intrusions, such as entering an employee’s office to retrieve a file or report while the employee is out. See id. at 722 (plurality); Id. at 732 (Scalia, J., concurring). Second, the Court concluded that employers can conduct reasonable investigations into an employee’s work-related misconduct, such as entering an employee’s office to investigate employee misfeasance that threatens the efficient and proper operation of the office. See id. at 724 (plurality); Id. at 732 (Scalia, J., concurring). The line between a legitimate work-related search and an illegitimate search for criminal evidence is clear in theory, but often blurry in fact. Public employers who learn of misconduct at work may investigate it with dual motives: they may seek evidence both to root out “inefficiency, incompetence, mismanagement, or other work-related misfeasance,” id. at 724, and also to collect evidence for a criminal prosecution. Indeed, the two categories may merge altogether. For example, government officials who have criminal investigators under their command may respond to allegations of work-related misconduct by directing the investigators to search employee offices for evidence of a crime. The courts have adopted fairly generous interpretations of O’Connor when confronted with mixed-motive searches. In general, the presence and involvement of law enforcement officers will not invalidate the search so long as the employer or his agent participates in the search for legitimate work-related reasons. See, e.g., Gossmeyer v. McDonald, 128 F.3d 481, 492 (7th Cir. 1997) (concluding that presence of law enforcement officers in a search team looking for evidence of work-related misconduct does not transform search into an illegitimate law enforcement search); Taketa, 923 F.2d at 674 (concluding that search of DEA office space by DEA agents investigating allegations of illegal wiretapping “was an internal investigation directed at uncovering work-related employee misconduct.”). Shields v. Burge, 874 F.2d 1201, 1202-05 (7th Cir. 1989) (applying the O’Connor exception to an internal affairs investigation of a police sergeant that paralleled a criminal investigation); Ross v. Hinton, 740 F. Supp. 451, 458 (S.D. Ohio 1990) (concluding that a public employer’s discussions with law enforcement officer concerning employee’s alleged criminal misconduct, culminating in officer’s advice to “secure” the employee’s files, did not transform employer’s subsequent search of employee’s office into a law enforcement search). Although the presence of law enforcement officers ordinarily will not invalidate a work-related search, a few courts have indicated that whether O’Connor applies depends as much on the identity of the personnel who conduct the search as whether the purpose of the search is work-related. For example, in United States v. Simons, 206 F.3d 392, 400 (4th Cir. 2000), the Fourth Circuit concluded that O’Connor authorized the search of a government employee’s office by his supervisor even though the dominant purpose of the search was to uncover evidence of a crime. Because the search was conducted by the employee’s supervisor, the Court indicated, it fell within the scope of O’Connor. See id. (“[The employer] did not lose its special need for the efficient and proper operation of the workplace merely because the evidence obtained was evidence of a crime.”) (internal quotations and citations omitted). Conversely, one district court has held that the O’Connor exception did not apply when a government employer sent a uniformed police officer to an employee’s office, even though the purpose of the police officer’s presence was entirely work-related. See Rossi v. Town of Pelham, 35 F. Supp.2d 58, 65-66 (D.N.H. 1997) (civil action pursuant to 42 U.S.C. § 1983) (concluding that O’Connor exception did not apply when town officials sent a single police officer to town clerk’s office to ensure that clerk did not remove public records from her office before a scheduled audit could occur; the resulting search was a “police intrusion” rather than an “employer intrusion”). Of
course, courts will invalidate warrantless workplace searches when the facts establish
that law enforcement provided the true impetus for the search, and the search
violated an employee’s reasonable expectation of privacy. See
United States v. Hagarty, 388 F.2d 713, 717 (7th Cir. 1968) (holding that
surveillance installed by criminal investigators violated the Fourth Amendment
where purpose of surveillance was “to detect criminal activity” rather
than “to supervise and investigate” a government employee); United
States v. Kahan, 350 F. Supp. 784, 791 (S.D.N.Y. 1972), rev’d in part
on other grounds, 479 F.2d 290 (2d Cir. 1973), rev’d with directions
to reinstate the district court judgment, 415 U.S. 239 (1974) (invalidating
warrantless search of INS employee’s wastebasket by INS criminal investigator
who searched the employee’s wastebasket for evidence of a crime every day
after work with the employer’s consent). ii) The Search Must Be Justified At Its Inception And Permissible In Its Scope To be “reasonable” under the Fourth Amendment, a work-related employer search of the type endorsed in O’Connor must also be both “justified at its inception,” and “permissible in its scope.” O’Connor, 480 U.S. at 726 (plurality). A search will be justified at its inception “when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose.” Id. See, e.g., Simons, 206 F.3d at 401 (holding that entrance into employee’s office to seize his computer was justified at its inception because employer knew that employee had used the computer to download child pornography); Gossmeyer, 128 F.3d at 491 (holding that co-worker’s specific allegations of serious misconduct made Sheriff’s search of Child Protective Investigator’s locked desk and file cabinets justified at its inception); Taketa, 923 F.2d at 674 (concluding that report of misconduct justified initial search of employee’s office); Shields, 874 F.2d at 1204 (suggesting in dicta that search of police officer’s desk for narcotics pursuant to internal affairs investigation might be reasonable following an anonymous tip); DeMaine v. Samuels, 2000 WL 1658586, at * 10 (D. Conn. 2000) (holding that search of police officer’s day planner was justified by information from two reliable sources that the officer kept detailed attendance notes relevant to overtime investigation involving other officers); Williams v. Philadelphia Housing Auth., 826 F. Supp. 952, 954 (E.D. Pa. 1993) (concluding that employee’s search for a computer disk in employee’s office was justified at its inception because employer needed contents of disk for official purposes). CompareOrtega v. O’Connor, 146 F.3d 1149, 1162 (9th Cir. 1998) (concluding that vague, uncorroborated and stale complaints of misconduct do not justify a decision to search an employee’s office). A search will be
“permissible in its scope” when “the measures adopted are reasonably
related to the objectives of the search and [are] not excessively intrusive in
light of the nature of the misconduct.” O’Connor, 480 U.S.
at 726 (plurality) (internal quotations omitted). This standard requires
employers and their agents to tailor work-related searches to the alleged misfeasance.
See, e.g., Simons, 206 F.3d at 401 (holding that search for
child pornography believed to be stored in employee’s computer was permissible
in scope because individual who conducted the search “simply crossed the
floor of [the defendant’s] office, switched hard drives, and exited”);
Gossmeyer, 128 F.3d at 491 (concluding that workplace search for images
of child pornography was permissible in scope because it was limited to places
where such images would likely be stored); Samuels, 2000 WL 1658586, at
*10 (holding that search through police officer’s day planner was reasonable
because Internal Affairs investigators had reason to believe day planner contained
information relevant to investigation of overtime abuse). If employers
conduct a search that unreasonably exceeds the scope necessary to pursue the employer’s
legitimate work-related objectives, the search will be “unreasonable”
and will violate the Fourth Amendment. See O’Connor, 146 F.3d at 1163
(concluding that “a general and unbounded” search of an employee’s
desk, cabinets, and personal papers was impermissible in scope where the search
team did not attempt to limit their investigation to evidence of alleged misconduct).
c) Consent in Public-Sector Workplaces Although
public employers may search employees’ workplaces without a warrant for work-related
reasons, public workplaces offer a more restrictive milieu in one respect. In
government workplaces, employers acting in their official capacity generally cannot
consent to a law enforcement search of their employees’ offices. See United
States v. Blok, 188 F.2d 1019, 1021 (D.C. Cir. 1951) (concluding that a government
supervisor cannot consent to a law enforcement search of a government employee’s
desk); Taketa, 923 F.2d at 673; Kahan, 350 F. Supp. at 791. The
rationale for this result is that the Fourth Amendment cannot permit one government
official to consent to a search by another. See Blok, 188 F.2d
at 1021 (“Operation of a government agency and enforcement of criminal law
do not amalgamate to give a right of search beyond the scope of either.”). Accordingly,
law enforcement searches conducted pursuant to a public employer’s consent
must be evaluated under O’Connor rather than the third-party consent
rules of Matlock. The question in such cases is not whether the public
employer had common authority to consent to the search, but rather whether the
combined law enforcement and employer search satisfied the Fourth Amendment standards
of O’Connor v. Ortega. The legal framework for searching and seizing computers with a warrant largely mirrors the legal framework for more traditional types of searches and seizures. As with any kind of search pursuant to a warrant, law enforcement must establish “probable cause, supported by Oath or affirmation,” and must “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. 4. Despite the common legal framework, computer searches differ from other searches because computer technologies frequently force agents to execute computer searches in nontraditional ways. Consider the traditional case of a warrant to seize a stolen car from a private parking lot. Agents generally can assume that the lot will still exist in its prior location when the agents execute the search, and can assume they will be able to identify the stolen car quickly based on the car’s model, make, license plate, or Vehicle Identification Number. As a result, the process of drafting the warrant and executing the search is relatively simple. After the agents establish probable cause and describe the car and lot to the magistrate judge, the magistrate judge can issue the warrant authorizing the agents to go to the lot and retrieve the car. Searches for computer files tend to be more complicated. Because computer files consist of electrical impulses that can be stored on the head of a pin and moved around the world in an instant, agents may not know where computer files are stored, or in what form. Files may be stored on a floppy diskette, on a hidden directory in a suspect’s laptop, or on a remote server located thousands of miles away. The files may be encrypted, misleadingly titled, stored in unusual file formats, or commingled with millions of unrelated, innocuous, and even statutorily protected files. As a result of these uncertainties, agents cannot simply establish probable cause, describe the files they need, and then “go” and “retrieve” the data. Instead, they must understand the technical limits of different search techniques, plan the search carefully, and then draft the warrant in a manner that authorizes the agents to take necessary steps to obtain the evidence they need. Searching and seizing computers with a warrant is as much an art as a science. In general, however, agents and prosecutors have found that they can maximize the likelihood of a successful search and seizure by following these four steps:
Although the lead investigating agent is the central figure in most searches, computer searches generally require a team with three important players: the agent, the prosecutor, and a technical specialist with expertise in computers and computer forensics. In most computer searches, the case agent organizes and directs the search, learns as much as possible about the computers to be searched, and writes the affidavit establishing probable cause. The technical specialist explains the technical limitations that govern the search to the case agent and prosecutor, creates the plan for executing the search, and in many cases takes the lead role in executing the search itself. Finally, the prosecutor reviews the affidavit and warrant and makes sure that the entire process complies with the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure. Of course, each member of the team should collaborate with the others to help ensure an effective search. There are many sources of technical expertise in the federal government. Most agencies that have law enforcement investigators also have technical specialists trained in computer forensics. For example, the FBI has Computer Analysis Response Team (CART) examiners, the Internal Revenue Service has Seized Computer Evidence Recovery (SCER) specialists, and the Secret Service has the Electronic Crime Special Agent Program (ESCAP). Investigating agents should contact the technical experts within their own agency. Further, some agencies offer case agents sufficient technical training that they may also be able to act as technical specialists. In such cases, the case agents normally do not need to consult with technical experts and can serve as technical specialists and case agents simultaneously.
After assembling the team, the case agent should begin acquiring as much information as possible about the computer system targeted by the search. It is difficult to overstate the importance of this step. For the most part, the need for detailed and accurate information about the targeted computer results from practical considerations. Until the agent has learned what kinds of computers and operating systems the target uses, it is impossible to know how the information the system contains can be retrieved, or even where the information may be located. Every computer and computer network is different, and subtle differences in hardware, software, operating systems, and system configuration can alter the search plan dramatically. For example, a particular search strategy may work well if a targeted network runs the Linux operating system, but might not work if the network runs Windows NT instead. These concerns are particularly important when searches involve complicated computer networks (as opposed to stand-alone PCs). For example, the mere fact that a business uses computers in its offices does not mean that the computers’ terminals found there actually contain any useful information. Businesses may contract with network service providers that store the business’s information on remote network servers located miles (or even thousands of miles) away. As a result of these considerations, a technical specialist cannot advise the case agent on the practical aspects of different search strategies without knowing the nature of the computer system to be searched. Agents need to learn as much as possible about the targeted computer before drafting the warrant, including (if possible) the hardware, the software, the operating system, and the configuration of the network. Obtaining detailed and accurate information about the targeted computer also has important legal implications. For example, the incidental seizure of First Amendment materials such as drafts of newsletters or web pages may implicate the Privacy Protection Act (“PPA”), 42 U.S.C. § 2000aa, and the incidental seizure and subsequent search through network accounts may raise issues under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2701-11 (see generally Parts B.2 and B.3, infra). To minimize liability under these statutes, agents should conduct a careful investigation into whether and where First Amendment materials and network accounts may be stored on the computer system targeted by the search. At least one court has suggested that a failure to conduct such an investigation can help deprive the government of a good faith defense against liability under these statutes. See Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), aff’d, 36 F.3d 457 (5th Cir. 1994). On a practical level, agents may take various approaches to learning about a targeted computer network. In some cases, agents can interview the system administrator of the targeted network (sometimes in an undercover capacity), and obtain all or most of the information the technical specialist needs to plan and execute the search. When this is impossible or dangerous, more piecemeal strategies may prove effective. For example, agents sometimes conduct on-site visits (often undercover) that at least reveal some elements of the hardware involved. A useful source of information for networks connected to the Internet is the Internet itself. For example, the “host” command in a UNIX environment often reveals the operating system, machines, and general layout of a targeted network connected to the Internet (although it may set off alarms at the target network).
With a team in place and the targeted system researched, the next step is to formulate a strategy for conducting the search. For example, will the agents search through the targeted computer(s) on the premises, or will they simply enter the premises and remove all of the hardware? Will the agents make copies of individual files, or will they make exact copies of entire hard drives? What will the agents do if their original plan fails, or if the computer hardware or software turns out to be significantly different from what they expected? These decisions hinge on a series of practical and legal considerations. In most cases, the search team should decide on a preferred search strategy, and then plan a series of backup strategies if the preferred strategy proves impractical. The issues that must be considered when formulating a strategy to search and seize a computer are discussed in depth in Part B of this chapter. In general, however, the issues group into four questions: First, what is the most effective search strategy that will comply with Rule 41 and the Fourth Amendment? Second, does the search strategy need to be modified to minimize the possibility of violating either the PPA or ECPA? Third, will the search require multiple warrants? And fourth, should agents ask for special permission to conduct a no-knock or sneak-and-peek search?
The
essential ingredients for drafting a successful search warrant are covered in
Section C, and a practical guide to drafting warrants and affidavits appears in
Appendix F. In general, however, the keys to drafting successful computer
search warrants are first to describe carefully and particularly the object of
the warrant that investigators have probable cause to seize, and second to explain
adequately the search strategy in the supporting affidavit. On a practical
level, these steps help focus and guide the investigators as they execute the
search. As a legal matter, the first step helps to overcome particularity
challenges, and the latter helps to thwart claims that the agents executed the
search in “flagrant disregard” of the warrant. 1. Basic Strategies for Executing Computer Searches Computer searches may be executed in a variety of ways. For the most part, there are four possibilities:
Which option is best for any particular search depends on many factors. The single most important consideration is the role of the computer hardware in the offense.
In general, computer hardware can serve one of two roles in a criminal case. First, the computer hardware can be a storage device for evidence of crime. For example, if a suspect keeps evidence of his fraud schemes stored in his personal computer, the hardware itself is merely a container for evidence. The purpose of searching the suspect's computer will be to recover the evidence the computer hardware happens to contain. In
other cases, however, computer hardware can itself be contraband, evidence, an
instrumentality, or a fruit of crime. For example, a computer used to transmit
child pornography is an instrumentality of crime, and stolen computers are contraband. In
such cases, Federal Rule of Criminal Procedure 41 grants agents the right to seize
the computer itself, independently from the materials that the hardware happens
to contain. See generally Appendix F (explaining
the scope of materials that may be seized according to Rule 41). Because
Rule 41 authorizes agents to seize hardware in the latter case but not the former,
the search strategy for a particular computer search hinges first on the role
of the hardware in the offense.6 a) When Hardware Is Itself Contraband, Evidence, or an Instrumentality or Fruit of Crime Under Fed. R. Crim. P. 41(b), agents may obtain search warrants to seize computer hardware if the hardware is contraband, evidence, or an instrumentality or fruit of crime. See Rule 41(b); Appendix F. When the hardware itself may be seized according to Rule 41, agents will usually conduct the search by seizing the computer and searching it off-site. For example, a home personal computer used to store and transmit contraband images is itself an instrumentality of the crime. See Davis v. Gracey, 111 F.3d 1472, 1480 (10th Cir. 1997) (computer used to store obscene images); United States v. Lamb, 945 F. Supp. 441, 462 (N.D.N.Y. 1996) (computer used to store child pornography). Accordingly, Rule 41 permits agents to obtain a warrant authorizing the seizure of the computer hardware. In most cases, investigators will simply obtain a warrant to seize the computer, seize the hardware during the search, and then search through the defendant's computer for the contraband files back at the police station or computer forensics laboratory. In such cases, the agents should explain in the supporting affidavit that they plan to search the computer for evidence and/or contraband after the computer has been seized and removed from the site of the search. Notably,
exceptions exist when agents will not want to seize computer hardware even when
the hardware is used as an instrumentality, evidence, contraband, or a fruit of
crime. When the “computer” involved is not a stand-alone PC but
rather part of a complicated network, the collateral damage and practical headaches
that would arise from seizing the entire network generally counsels against a
wholesale seizure. For example, if a system administrator of a computer network
stores stolen proprietary information somewhere in the network, the network becomes
an instrumentality of the system administrator's crime. Technically, agents
could obtain a warrant to seize the entire network. However, carting off
the entire network might cripple a functioning business and disrupt the lives
of hundreds of people, as well as subject the government to civil suits under
the Privacy Protection Act, 42 U.S.C. § 2000aa and the Electronic Communications
Privacy Act, 18 U.S.C. §§ 2701-11. See generally
Steve Jackson Games, Inc. v. Secret Service, 816 F. Supp. 432, 440, 443
(W.D. Tex. 1993) (discussed infra). In such circumstances, agents
will want to take a more nuanced approach to obtain the evidence they need. Agents
faced with such a situation can call the Computer Crime and Intellectual Property
Section at (202) 514-1026 or the Assistant U.S. Attorney designated as a Computer-Telecommunications
Coordinator (CTC) in their district for more specific advice. b) When Hardware is Merely a Storage Device for Evidence of Crime The strategy for conducting a computer search is significantly different if the computer hardware is merely a storage device for evidence of a crime. In such cases, Rule 41(b) authorizes agents to obtain a warrant to seize the electronic evidence, but arguably does not authorize the agents to seize the hardware that happens to contain that evidence. Cf. United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (noting that probable cause to seize specific paper files enumerated in warrant technically does permit the seizure of commingled innocent files). The hardware is merely a storage container for evidence, not evidence itself. This does not mean that the government cannot seize the equipment: rather, it means that the government generally should only seize the equipment if a less intrusive alternative that permits the effective recovery of the evidence is infeasible in the particular circumstances of the case. Cf. id. at 596. As a practical matter, circumstances will often require investigators to seize equipment and search its contents off-site. First, it may take days or weeks to find the specific information described in the warrant because computer storage devices can contain extraordinary amounts of information. Agents cannot reasonably be expected to spend more than a few hours searching for materials on-site, and in some circumstances (such as executing a search at a suspect's home) even a few hours may be unreasonable. See United States v. Santarelli, 778 F.2d 609, 615-16 (11th Cir. 1985). Given that personal computers sold in the year 2000 usually can store the equivalent of ten million pages of information and networks can store hundreds of times that (and these capacities double nearly every year), it may be practically impossible for agents to search quickly through a computer for specific data, a particular file, or a broad set of files while on-site. Even if the agents know specific information about the files they seek, the data may be mislabeled, encrypted, stored in hidden directories, or embedded in “slack space” that a simple file listing will ignore. Recovering the evidence may require painstaking analysis by an expert in the controlled environment of a forensics laboratory. Attempting to search files on-site may even risk damaging the evidence itself in some cases. Agents executing a search may learn on-site that the computer employs an uncommon operating system that the on-site technical specialist does not fully understand. Because an inartful attempt to conduct a search may destroy evidence, the best strategy may be to remove the hardware so that a government expert in that particular operating system can examine the computer later. Off-site searches also may be necessary if agents have reason to believe that the computer has been “booby trapped” by a savvy criminal. Technically adept users may know how to trip-wire their computers with self-destruct programs that could erase vital evidence if the system were examined by anyone other than an expert. For example, a criminal could write a very short program that would cause the computer to demand a password periodically, and if the correct password is not entered within ten seconds, would trigger the automatic destruction of the computer's files. In these cases, it is best to seize the equipment and permit an off-site expert to disarm the program before any search occurs. In light of these uncertainties, agents often plan to try to search on-site, with the understanding that they will seize the equipment if circumstances discovered on-site make an on-site search infeasible. Once on-site to execute the search, the agents will assess the hardware, software, and resources available to determine whether an on-site search is possible. In many cases, the search strategy will depend on the sensitivity of the environment in which the search occurs. For example, agents seeking to obtain information stored on the computer network of a functioning business will in most circumstances want to make every effort to obtain the information without seizing the business’s computers, if possible. In such situations, a tiered search strategy designed to use the least intrusive approach that will recover the information is generally appropriate. Such approaches are discussed in Appendix F. Whatever search strategy is chosen, it should be explained fully in the affidavit supporting the warrant application. Sometimes, conducting a search on-site will be possible. A friendly employee or system administrator may agree to pinpoint a file or record or may have a recent backup, permitting the agents to obtain a hard copy of the files they seek while on-site. See, e.g., United States v. Longo, 70 F. Supp.2d 225 (W.D.N.Y. 1999) (upholding pinpoint search aided by suspect’s secretary for two particular computer files). Alternatively, agents may be able to locate the set of files targeted and make electronic copies, or may be able to mirror a segment of the storage drive based on knowledge that the information exists somewhere within that segment of the drive. In other cases, of course, such strategies will fail. If the agents cannot learn where the information is stored or cannot create a working mirror image for technical reasons, they may have no choice but to seize the computer and remove it. Because personal computers are easily moved and can be searched effectively off-site using special forensics tools, agents are particularly likely to seize personal computers absent unusual circumstances. The
general strategy is to pursue the quickest, least intrusive, and most direct search
strategy that is consistent with securing the evidence described in the warrant. This
strategy will permit agents to search on-site in some cases, and will permit them
to seize the computers for off-site review in others. Flexibility is the
key.
Under the Privacy Protection Act (“PPA”), 42 U.S.C. § 2000aa, law enforcement must take special steps when planning a search that agents have reason to believe may result in the seizure of certain First Amendment materials. Federal law enforcement searches that implicate the PPA must be pre-approved by the Justice Department in Washington, D.C. The Computer Crime and Intellectual Property Section serves as the contact point for all such searches involving computers, and should be contacted directly at (202) 514-1026. a) A Brief History of the Privacy Protection Act Before the Supreme Court decided Warden v. Hayden, 387 U.S. 294, 309 (1967), law enforcement officers could not obtain search warrants to search for and seize “mere evidence” of crime. Warrants were permitted only to seize contraband, instrumentalities, or fruits of crime. See Boyd v. United States, 116 U.S. 616 (1886). In Hayden, the Court reversed course and held that the Fourth Amendment permitted the government to obtain search warrants to seize mere evidence. This ruling set the stage for a collision between law enforcement and the press. Because journalists and reporters often collect evidence of criminal activity in the course of developing news stories, they frequently possess “mere evidence” of crime that may prove useful to law enforcement investigations. By freeing the Fourth Amendment from Boyd's restrictive regime, Hayden created the possibility that law enforcement could use search warrants to target the press for evidence of crime it had collected in the course of investigating and reporting news stories. It did not take long for such a search to occur. On April 12, 1971, the District Attorney's Office in Santa Clara County, California obtained a search warrant to search the offices of The Stanford Daily, a Stanford University student newspaper. The DA's office was investigating a violent clash between the police and demonstrators that had occurred at the Stanford University Hospital three days earlier. The Stanford Daily had covered the incident, and published a special edition featuring photographs of the clash. Believing that the newspaper probably had more photographs of the clash that could help the police identify the demonstrators, the police obtained a warrant and sent four police officers to search the newspaper's office for further evidence that could assist the investigation. The officers found nothing. A month later, however, the Stanford Daily and its editors brought a civil suit against the police claiming that the search had violated their First and Fourth Amendment rights. The case ultimately reached the Supreme Court, and in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Court rejected the newspaper’s claims. Although the Court noted that “the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections” for searches of the press, it held that neither the Fourth nor First Amendment prohibited such searches. Id. at 567. Congress passed the PPA in 1980 in response to Stanford Daily. According to the Senate Report, the PPA protected “the press and certain other persons not suspected of committing a crime with protections not provided currently by the Fourth Amendment.” S. Rep. No. 96-874, at 4 (1980). The statute was intended to grant publishers certain statutory rights to discourage law enforcement officers from targeting publishers simply because they often gathered “mere evidence” of crime. As the legislative history indicates,
Id. at 11. b) The Terms of the Privacy Protection Act Subject
to certain exceptions, the PPA makes it unlawful for a government officer “to
search for or seize” materials when
Violations of the PPA do not result in suppression of the evidence, but can result in civil damages against the sovereign whose officers or employees execute the search. See § 2000aa-6(a),(d),(e); Davis v. Gracey, 111 F.3d 1472, 1482 (10th Cir. 1997) (dismissing PPA suit against municipal officers in their personal capacities because such suits must be filed only against the “government entity”). If State officers or employees violate the PPA and the state does not waive its sovereign immunity and is thus immune from suit, see Barnes v. State of Missouri, 960 F.2d 63, 65 (8th Cir. 1992), individual State officers or employees may be held liable for acts within the scope or under the color of their employment subject to a reasonable good faith defense. See § 2000aa-6(a)(2),(b). c) Application of the PPA to Computer Searches and Seizures PPA issues frequently arise in computer cases for two reasons that Congress could not have foreseen in 1980. First, the use of personal computers for publishing and the World Wide Web has dramatically expanded the scope of who is “involved in First Amendment activities.” Today, anyone with a computer and access to the Internet may be a publisher who possesses PPA-protected materials on his or her computer. The second reason that PPA issues arise frequently in computer cases is that the language of the statute does not explicitly rule out liability following incidental seizures of PPA-protected materials, and such seizures may inevitably result when agents search for and seize computer-stored contraband or evidence of crime that is commingled with PPA-protected materials. For example, investigations into illegal businesses that publish images of child pornography over the Internet have revealed that such businesses frequently support other publishing materials (such as drafts of adult pornography) that may be PPA-protected. Agents may find that the PPA interferes with their ability to seize the contraband child pornography because the contraband may be commingled with PPA-protected materials on the business's computers. Seizing the computer for the contraband would necessarily result in the seizure of the PPA-protected materials. Under this interpretation of the PPA, the statute does not merely deter law enforcement from targeting innocent publishers for their evidence, but also affirmatively protects individuals from the incidental seizure of property that may be used in part for First Amendment activities. As a formal matter, the legislative history and text of the PPA indicate that Congress probably intended the PPA to apply only when law enforcement intentionally targeted First Amendment material that related to a crime, as in Stanford Daily. For example, the so-called “suspect exception” eliminates PPA liability when “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate,” 42 U.S.C. § 2000aa(a)(1), § 2000aa(b)(1) (emphasis added). This text indicates that Congress believed that PPA-protected materials would necessarily relate to a criminal offense, as when investigators target the materials as evidence. When agents collaterally seize PPA-protected materials because they are commingled on a computer with other materials properly targeted by law enforcement, however, the PPA-protected materials will not necessarily relate to any crime at all. For example, the PPA-protected materials might be drafts of a horticulture newsletter that just happen to sit on the same hard drive as images of child pornography or records of a fraud scheme. At least one court has responded to this difficulty by reading the phrase “to which the materials relate” quite broadly when an inadvertent seizure of commingled matter occurs. See United States v. Hunter, 13 F. Supp.2d 574, 582 (D. Vt. 1998) (concluding that materials for weekly legal newsletter published by the defendant from his law office “relate” to the defendant's alleged involvement in his client's drug crimes when the former was inadvertently seized in a search for evidence of the latter). This reading effectively restores the suspect exception to its intended purpose: limiting the scope of PPA protection to “the press and certain other persons not suspected of committing a crime.” S. Rep. No. 96-874, at 4 (1980). See also Carpa v. Smith, 208 F.3d 220, 2000 WL 189678, at *1 (9th Cir. 2000) (unpublished opinion) (“[T]he Privacy Protection Act . . . does not apply to criminal suspects.”). Although Congress probably intended the PPA to apply only when law enforcement intentionally targets PPA-protected materials in search of evidence, at least one court has held law enforcement liable under the PPA for the incidental seizure of (and more particularly, failure to return) PPA-protected materials stored on a seized computer. In Steve Jackson Games, Inc. v. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), aff’d on other grounds, 36 F.3d 457 (5th Cir. 1994)7, a district court held the United States Secret Service liable for the inadvertent seizure of PPA-protected materials possessed by Steve Jackson Games, Inc. (“SJG”). Although SJG was primarily a publisher of role-playing games, it also operated a network of thirteen computers that provided its customers with e-mail, published information about SJG products, and stored drafts of upcoming publications. The Secret Service executed a search of SJG's computers on March 1, 1990, after learning that a system administrator of SJG's computers had been linked to a computer hacking incident under Secret Service investigation. Believing that the system administrator had stored evidence of the crime on SJG's computers, the Secret Service obtained a warrant and seized two of the thirteen computers connected to SJG's network, in addition to other materials. The Secret Service did not know that SJG's computers contained publishing materials until the day after the search, on March 2, 1990. However, the Secret Service did not return the computers it seized until months later. At no time did the Secret Service believe that SJG itself was involved in the crime under investigation. The district court in Steve Jackson Games ruled that the Secret Service violated the PPA by continuing to hold SJG's seized property after it learned that the property included materials that SJG intended to disseminate to the public, including drafts of a book and magazine articles. Although the Secret Service had executed the search to find evidence of computer hacking, the incidental seizure and then retention of PPA-protected material constituted a prohibited seizure of “work product materials” and “documentary materials” according to 42 U.S.C. § 2000aa. See id. at 440-41. The court set the damage award at just over $50,000, plus attorney’s fees to be determined later. Unfortunately, the district court’s precise reasoning in Steve Jackson Games is difficult to discern. For example, the court did not explain exactly which of the materials the Secret Service seized were covered by the PPA; instead, the court merely recited the property that had been seized, and concluded that some PPA-protected materials “were obtained” during the search. Id. at 440. Similarly, the court indicated that the search of SJG and the initial seizure of its property did not violate the PPA, but that the Secret Service’s continued retention of SJG’s property despite a request by SJG for its return was the true source of the PPA violation – something that the statute itself does not appear to contemplate. See id. at 441. The court also suggested that it might have ruled differently if the Secret Service had made “copies of all information seized” and returned the hardware as soon as possible, but did not answer whether in fact it would have reached a different result in such case. Id. Finally, the court set damages equal to the company's lost profits resulting from the search, seizure, and retention of SJG’s property, quite irrespective of how much of the company’s lost profits were derived specifically from the seizure and retention of the PPA-protected materials. See id. The boundaries of the PPA remain quite uncertain in the wake of Steve Jackson Games. See, e.g., State of Oklahoma v. One (1) Pioneer CD-ROM Changer, 891 P.2d 600, 607 (Okla. App. 1995) (rejecting the apparent premise of Steve Jackson Games that the seizure of computer equipment could violate the PPA merely because the equipment “also contained or was used to disseminate potential 'documentary materials'”). The handful of federal courts that have resolved civil suits filed under the PPA since the district court opinion in Steve Jackson Games have ruled against the plaintiffs with little substantive analysis. See, e.g., Davis v. Gracey, 111 F.3d 1472, 1482 (10th Cir. 1997) (dismissing for lack of jurisdiction PPA suit improperly filed against municipal employees in their personal capacities); United States v. Hunter, 13 F. Supp.2d 574, 582 (D. Vt. 1998) (rejecting PPA claim when search of attorney's office for evidence of a crime arising from law practice led to seizure of materials relating to legal newsletter “because the government had reason to believe that [the defendant] had committed a criminal offense . . . to which the seized materials related”); DePugh v. Sutton, 917 F. Supp. 690, 696-97 (W.D. Mo. 1996) (rejecting pro se PPA challenge to seizure of materials relating to child pornography because there was probable cause to believe that the person possessing the materials committed the criminal offense to which the materials related), aff'd, 104 F.3d 363 (8th Cir. 1996); Powell v. Tordoff, 911 F. Supp. 1184, 1189-90 (N.D. Iowa 1995) (dismissing PPA claim because plaintiff did not have standing to challenge search and seizure under the Fourth Amendment). See also Lambert v. Polk County, 723 F. Supp. 128, 132 (S.D. Iowa 1989) (rejecting PPA claim after police seized videotape because officers could not reasonably believe that the owner of the tape had a purpose to disseminate the material to the public). Agents
and prosecutors who have reason to believe that a search may implicate the PPA
should contact the Computer Crime and Intellectual Property Section at (202) 514-1026
or the Assistant U.S. Attorney designated as a Computer-Telecommunications Coordinator
(CTC) in each district for more specific guidance. 3. Civil Liability Under the Electronic Communications Privacy Act
When law enforcement executes a search of an Internet service provider and seizes the accounts of customers and subscribers, those customers and subscribers may bring civil actions claiming that the search violated the Electronic Communications Privacy Act (ECPA). ECPA governs law enforcement access to the contents of electronic communications stored by third-party service providers. See 18 U.S.C. § 2703; Chapter 3, infra (discussing the Electronic Communications Privacy Act). In addition, ECPA has a criminal provision that prohibits unauthorized access to electronic or wire communications in “electronic storage.” See 18 U.S.C. § 2701; Chapter 3, infra (discussing the definition of “electronic storage”). The concern that a search executed pursuant to a valid warrant might violate ECPA derives from Steve Jackson Games, Inc. v. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), discussed supra. In Steve Jackson Games, the district court held the Secret Service liable under ECPA after it seized, reviewed, and (in some cases) deleted stored electronic communications seized pursuant to a valid search warrant. See id. at 443. The court's holding appears to be rooted in the mistaken belief that ECPA requires that search warrants also comply with 18 U.S.C. § 2703(d) and the various notice requirements of § 2703. See id. In fact, ECPA makes quite clear that § 2703(d) and the notice requirements § 2703 are implicated only when law enforcement does not obtain a search warrant. Compare 18 U.S.C. § 2703(b)(1)(A), § 2703(c)(1)(B)(i) with 18 U.S.C. § 2703(b)(1)(B), § 2703(c)(1)(B)(ii). See generally Chapter 3, infra. Indeed, the text of ECPA does not appear to contemplate civil liability for searches and seizures authorized by valid Rule 41 search warrants: ECPA expressly authorizes government access to stored communications pursuant to a warrant issued under the Federal Rules of Criminal Procedure, see 18 U.S.C. § 2703(a), (b), (c)(1)(B); Davis v. Gracey, 111 F.3d 1472, 1483 (10th Cir. 1997), and the criminal prohibition of § 2701 does not apply when access is authorized under § 2703. See 18 U.S.C. § 2701(c)(3)8. Further, objectively reasonable good faith reliance on a warrant, court order, or statutory authorization is a complete defense to an ECPA violation. See 18 U.S.C. § 2707(e); Gracey, 111 F.3d at 1484 (applying good faith defense because seizure of stored communications incidental to a valid search was objectively reasonable). Compare Steve Jackson Games, 816 F. Supp. at 443 (stating without explanation that the court “declines to find this defense”). The best way to square the result in Steve Jackson Games with the plain language of ECPA is to exercise great caution when agents need to execute searches of Internet service providers and other third-parties holding stored wire or electronic communications. In most cases, investigators will want to avoid a wholesale search and seizure of the provider’s computers. When investigators have no choice but to execute the search, they must take special care. For example, if agents have reason to believe that they may seize customer accounts belonging to innocent persons but have no reason to believe that the evidence sought will be stored there, they should inform the magistrate judge in the search warrant affidavit that they will not search those accounts and should take steps to ensure the confidentiality of the accounts in light of the privacy concerns expressed by 18 U.S.C. § 2703. Safeguarding the accounts of innocent persons absent specific reasons to believe that evidence may be stored in the persons' accounts should satisfy the concerns expressed in Steve Jackson Games. CompareSteve Jackson Games, 816 F. Supp. at 441 (finding ECPA liability where agents read the private communications of customers not involved in the crime “and thereafter deleted or destroyed some communications either intentionally or accidentally”) with Gracey, 111 F.3d at 1483 (declining to find ECPA liability in seizure where “[p]laintiffs have not alleged that the officers attempted to access or read the seized e-mail, and the officers disclaimed any interest in doing so”). If
agents believe that a hacker or system administrator might have hidden evidence
of a crime in the account of an innocent customer or subscriber, agents should
proceed carefully. For example, agents should inform the magistrate judge of their
need to search the account in the affidavit, and should attempt to obtain the
consent of the customer or subscriber if feasible. In such cases, agents
should contact the Computer Crime and Intellectual Property Section at (202) 514-1026
or the CTC designated in their district for more specific guidance. 4. Considering the Need for Multiple Warrants in Network Searches
Fed. R. Crim. P. 41(a) states that a magistrate judge located in one judicial district may issue a search warrant for “a search of property . . . within the district,” or “a search of property . . . outside the district if the property . . . is within the district when the warrant is sought but might move outside the district before the warrant is executed.” The Supreme Court has held that “property” as described in Rule 41 includes intangible property such as computer data. See United States v. New York Tel. Co., 434 U.S. 159, 170 (1977). Although the courts have not directly addressed the matter, the language of Rule 41 combined with the Supreme Court’s interpretation of “property” may limit searches of computer data to data that resides in the district in which the warrant was issued. Cf. United States v. Walters, 558 F. Supp. 726, 730 (D. Md. 1980) (suggesting such a limit in a case involving telephone records). A territorial limit on searches of computer data poses problems for law enforcement because computer data stored in a computer network can be located anywhere in the world. For example, agents searching an office in Manhattan pursuant to a warrant from the Southern District of New York may sit down at a terminal and access information stored remotely on a computer located in New Jersey, California, or even a foreign country. A single file described by the warrant could be located anywhere on the planet, or could be divided up into several locations in different districts or countries. Even worse, it may be impossible for agents to know when they execute their search whether the data they are seizing has been stored within the district or outside of the district. Agents may in some cases be able to learn where the data is located before the search, but in others they will be unable to know the storage site of the data until after the search has been completed. When agents can learn prior to the search that some or all of the data described by the warrant is stored remotely from where the agents will execute the search, the best course of action depends upon where the remotely stored data is located. When the data is stored remotely in two or more different places within the United States and its territories, agents should obtain additional warrants for each location where the data resides to ensure compliance with a strict reading of Rule 41(a). For example, if the data is stored in two different districts, agents should obtain separate warrants from the two districts. Agents should also include a thorough explanation of the location of the data and the proposed means of conducting the search in the affidavits accompanying the warrants. When agents learn before a search that some or all of the data is stored remotely outside of the United States, matters become more complicated. The United States may be required to take actions ranging from informal notice to a formal request for assistance to the country concerned. Further, some countries may object to attempts by U.S. law enforcement to access computers located within their borders. Although the search may seem domestic to a U.S. law enforcement officer executing the search in the United States pursuant to a valid warrant, other countries may view matters differently. Agents and prosecutors should contact the Office of International Affairs at (202) 514-0000 for assistance with these difficult questions. When agents do not and even cannot know that data searched from one district is actually located outside the district, evidence seized remotely from another district ordinarily should not lead to suppression of the evidence obtained. The reasons for this are twofold. First, courts may conclude that agents sitting in one district who search a computer in that district and unintentionally cause intangible information to be sent from a second district into the first have complied with Rule 41(a). Compare United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997) (Posner, C.J.) (adopting a permissive construction of the territoriality provisions of Title III); United States v. Denman, 100 F.3d 399, 402 (5th Cir. 1996) (same); United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992) (same). Second,
even if courts conclude that the search violates Rule 41(a), the violation will
not lead to suppression of the evidence unless the agents intentionally and deliberately
disregarded the Rule, or the violation leads to “prejudice” in the sense
that the search might not have occurred or would not have been so “abrasive”
if the Rule had been followed. See United States v. Burke,
517 F.2d 377, 386 (2d Cir. 1975) (Friendly, J.); United States v. Martinez-Zayas,
857 F.2d 122, 136 (3d Cir. 1988) (citing cases). Under the widely-adopted
Burke test, courts generally deny motions to suppress when agents executing
the search cannot know whether it violates Rule 41 either legally or factually.
See Martinez-Zayas, 857 F.2d at 136 (concluding that a search passed
the Burke test “[g]iven the uncertain state of the law” concerning whether
the conduct violated Rule 41(a)). Accordingly, evidence acquired from a network
search that accessed data stored in multiple districts should not lead to suppression
unless the agents intentionally and deliberately disregarded Rule 41(a) or prejudice
resulted. See generally United States v. Trost, 152
F.3d 715, 722 (7th Cir. 1998) (“[I]t is difficult to anticipate any violation
of Rule 41, short of a defect that also offends the Warrant Clause of the fourth
amendment, that would call for suppression.”). As a general matter, agents must announce their presence and authority prior to executing a search warrant. See Wilson v. Arkansas, 514 U.S. 927, 934 (1995); 18 U.S.C. § 3109. This so-called “knock and announce” rule reduces the risk of violence and destruction of property when agents execute a search. The rule is not absolute, however. In Richards v. Wisconsin, 520 U.S. 385 (1997), the Supreme Court held that agents can dispense with the knock-and-announce requirement if they have
Id. at 394. The Court stated that this showing was “not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.” Id. at 394-95. Such a showing satisfies both the Fourth Amendment and the statutory knock-and-announce rule of 18 U.S.C. § 3109. See United States v. Ramirez, 118 S. Ct. 992, 997-98 (1998). Agents may need to conduct no-knock searches in computer crime cases because technically adept suspects may “hot wire” their computers in an effort to destroy evidence. For example, technically adept computer hackers have been known to use “hot keys,” computer programs that destroy evidence when a special button is pressed. If agents knock at the door to announce their search, the suspect can simply press the button and activate the program to destroy the evidence. When agents have
reason to believe that knocking and announcing their presence would allow the
destruction of evidence, would be dangerous, or would be futile, agents should
request that the magistrate judge issue a no-knock warrant. The failure to
obtain judicial authorization to dispense with the knock-and-announce rule does
not preclude the agents from conducting a no-knock search, however. In some
cases, agents may neglect to request a no-knock warrant, or may not have reasonable
suspicion that evidence will be destroyed until they execute the search. In
Richards, the Supreme Court made clear that “the reasonableness of
the officers' decision [to dispense with the knock-and-announce rule] . . . must
be evaluated as of the time they entered” the area to be searched. Richards,
510 U.S. at 395. Accordingly, agents may “exercise independent judgment”
and decide to conduct a no-knock search when they execute the search, even if
they did not request such authority or the magistrate judge specifically refused
to authorize a no-knock search. Id. at 396 n.7. The question
in all such cases is whether the agents had “a reasonable suspicion that
knocking and announcing their presence, under the particular circumstances, would
be dangerous or futile, or that it would inhibit the effective investigation of
the crime by, for example, allowing the destruction of evidence.” Id.
at 394. Despite Rule 41(d), courts have authorized “sneak-and-peek” warrants in a few narrow situations. Sometimes called “surreptitious search warrants,” sneak-and-peek warrants are warrants that excuse agents from having to notify the person whose premises are searched that the search has occurred at the time of the search. See Paul V. Konovalov, Note, On a Quest for Reason: A New Look at Surreptitious Search Warrants, 48 Hastings L.J. 435, 443 (1997); United States v. Freitas, 800 F.2d 1451, 1452 (9th Cir. 1986) (discussing magistrate judge's creation of a sneak and peek warrant by “cross[ing] off . . . the requirement [on the warrant form] that copies of the warrant and an inventory of the property taken were to be left at the residence”). Because notice furthers important constitutional values, it is important that agents who wish to obtain sneak-and-peek warrants should do so sparingly, and only in special circumstances. However, sneak-and-peek searches may prove useful in searches for intangible computer data. For example, agents executing a sneak-and-peek warrant to search a computer may be able to enter a business after hours, search the computer, and then exit the business without leaving any sign that the search occurred. The circuits that have considered the legality of sneak-and-peek warrants have struggled to reconcile them with Rule 41(d) and the Fourth Amendment. The Second and Ninth Circuits each set forth two requirements that must be met in the absence of explicit statutory authority before a sneak-and-peek warrant may be authorized. First, the officers must make a showing of “reasonable necessity” as to why the officers should be able to delay notice of the search. United States v. Villegas, 899 F.2d 1324, 1337 (2d Cir. 1990). See also Freitas, 800 F.2d at 1456. Second, the warrant must require notice to the target of the search within seven days of the surreptitious search unless a “strong showing of necessity” for further delay has been made. Freitas, 800 F.2d at 1456; See also Villegas, 899 F.2d at 1337. Although other circuits may take a less restrictive approach, see United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000) (concluding that a 45-day delay in notice was permissible under the Fourth Amendment), these two requirements provide a useful standard that agents should follow when they seek judicial authorization to conduct a sneak-and-peek search. If
these two requirements are met, a court will permit evidence obtained in violation
of Rule 41 to be used in court so long as 1) the covert nature of the search did
not prejudice the target, in the sense that the search might not have occurred
if notice had been given, and 2) the agents did not intentionally and deliberately
disregard Rule 41 in executing the search. See Simons, 206
F.3d at 403; United States v. Pangburn, 983 F.2d 449, 455 (2d Cir. 1993);
United States v. Johns, 948 F.2d 599, 603 (9th Cir. 1991). Agents
executing a sneak-and-peek search will not be deemed to have intentionally and
deliberately disregarded Rule 41 if the warrant authorized the sneak-and-peek
search, or the executing agents believed that the warrant authorized such a search. See
United States v. Simons, 107 F. Supp.2d 703, 705 (E.D. Va. 2000) (concluding
that agents who mistakenly believed that a warrant authorized a sneak-and-peek
warrant were “at most, negligent,” and that the resulting search was
therefore not executed with intentional disregard of Rule 41). Finally, a
showing of good faith reliance on a sneak-and-peek warrant will defeat a suppression
motion. See Johns, 948 F.2d at 605; Freitas, 800 F.2d
at 1456. See generally United States v. Leon, 468 U.S. 897
(1984). Agents must exercise special care when planning a computer search that may result in the seizure of legally privileged documents such as medical records or attorney-client communications. Two issues must be considered. First, agents should make sure that the search will not violate the Attorney General's regulations relating to obtaining confidential information from disinterested third parties. Second, agents should devise a strategy for reviewing the seized computer files following the search so that no breach of a privilege occurs. a) The Attorney General's Regulations Relating to Searches of Disinterested Lawyers, Physicians, and Clergymen Agents should be very careful if they plan to search the office of a doctor, lawyer, or member of the clergy who is not implicated in the crime under investigation. At Congress's direction, the Attorney General has issued guidelines for federal officers who want to obtain documentary materials from such disinterested third parties. See 42 U.S.C. § 2000aa-11(a); 28 C.F.R. § 59.4(b). Under these rules, federal law enforcement officers should not use a search warrant to obtain documentary materials believed to be in the private possession of a disinterested third party physician, lawyer, or clergyman where the material sought or likely to be reviewed during the execution of the warrant contains confidential information on patients, clients, or parishioners. 28 C.F.R. § 59.4(b). The regulation does contain a narrow exception. A search warrant can be used if using less intrusive means would substantially jeopardize the availability or usefulness of the materials sought; access to the documentary materials appears to be of substantial importance to the investigation; and the application for the warrant has been recommended by the U.S. Attorney and approved by the appropriate Deputy Assistant Attorney General. See 28 C.F.R. § 59.4(b)(1) and (2). When planning to search the offices of a lawyer under investigation, agents should follow the guidelines offered in the United States Attorney's Manual, and should consult the Office of Enforcement Operations at (202) 514-3684. See generally United States Attorney's Manual, § 9-13.420 (1997). b) Strategies for Reviewing Privileged Computer Files
When agents seize a computer that contains legally privileged files, a trustworthy third party must comb through the files to separate those files within the scope of the warrant from files that contain privileged material. After reviewing the files, the third party will offer those files within the scope of the warrant to the prosecution team. Preferred practices for determining who will comb through the files vary widely among different courts. In general, however, there are three options. First, the court itself may review the files in camera. Second, the presiding judge may appoint a neutral third party known as a “special master” to the task of reviewing the files. Third, a team of prosecutors who are not working on the case may form a “taint team” or “privilege team” to help execute the search and review the files afterwards. The taint team sets up a so-called “Chinese Wall” between the evidence and the prosecution team, permitting only unprivileged files that are within the scope of the warrant to slip through the wall. Because
a single computer can store millions of files, judges will undertake in camera
review of computer files only rarely. See Black v. United States,
172 F.R.D. 511, 516-17 (S.D. Fla. 1997) (accepting in camera review given unusual
circumstances); United States v. Skeddle, 989 F. Supp. 890, 893 (N.D.
Ohio 1997) (declining in camera review). Instead, the typical choice is between
using a taint team and a special master. Most prosecutors will prefer to
use a taint team if the court consents. A taint team can usually screen through
the seized computer files fairly quickly, whereas special masters often take several
years to complete their review. See Black, 172 F.R.D. at 514
n.4. On the other hand, some courts have expressed discomfort with taint
teams. See United States v. Neill, 952 F. Supp. 834, 841 (D.D.C.
1997); United States v. Hunter, 13 F. Supp.2d 574, 583 n.2 (D. Vt. 1998)
(stating that review by a magistrate judge or special master “may be preferable”
to reliance on a taint team) (citing In re Search Warrant, 153 F.R.D. 55, 59 (S.D.N.Y.
1994)). Although no single standard has emerged, these courts have generally
indicated that evidence screened by a taint team will be admissible only if the
government shows that its procedures adequately protected the defendants' rights
and no prejudice occurred. See, e.g., Neill, 952 F. Supp.
at 840-42; Hunter, 13 F. Supp.2d at 583. In unusual circumstances,
the court may conclude that a taint team would be inadequate and may appoint a
special master to review the files. See, e.g., United States
v. Abbell, 914 F. Supp. 519 (S.D. Fla. 1995); DeMassa v. Nunez, 747
F.2d 1283 (9th Cir. 1984). In any event, the reviewing authority will almost
certainly need a skilled and neutral technical expert to assist in sorting, identifying,
and analyzing digital evidence for the reviewing process. C. Drafting the Warrant and Affidavit Law
enforcement officers must draft two documents to obtain a search warrant from
a magistrate judge. The first document is the affidavit, a sworn statement
that (at a minimum) explains the basis for the affiant's belief that the search
is justified by probable cause. The second document is the proposed warrant
itself. The proposed warrant typically is a one-page form, plus attachments
incorporated by reference, that describes the place to be searched, and the persons
or things to be seized. If the magistrate judge agrees that the affidavit
establishes probable cause, and that the proposed warrant's descriptions of the
place to be searched and things to be seized are adequately particular, the magistrate
judge will sign the warrant. Under the Federal Rules of Criminal Procedure,
officers must execute the warrant within ten days after the warrant has been signed. See
Fed. R. Crim. P. 41(b). Step 1: Accurately and Particularly Describe the Property to be Seized in the Warrant and/or Attachments to the Warrant a. General Agents must take special care when describing the computer files or hardware to be seized, either in the warrant itself or (more likely) in an attachment to the warrant incorporated into the warrant by reference. The Fourth Amendment requires that every warrant must “particularly describ[e] . . . the . . . things to be seized.” U.S. Const. Amend. IV. The particularity requirement prevents law enforcement from executing “general warrants” that permit “exploratory rummaging” through a person's belongings in search of evidence of a crime. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). The
particularity requirement has two distinct elements. See United
States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999). First, the warrant
must describe the things to be seized with sufficiently precise language so that
it tells the officers how to separate the items properly subject to seizure from
irrelevant items. See Davis v. Gracey, 111 F.3d 1472, 1478
(10th Cir. 1997); Marron v. United States, 275 U.S. 192, 296 (1925) (“As
to what is to be taken, nothing is left to the discretion of the officer executing
the warrant.”). Second, the description of the things to be seized must
not be so broad that it encompasses items that should not be seized. See
Upham, 168 F.3d at 535. Put another way, the description in the warrant
of the things to be seized should be limited to the scope of the probable cause
established in the warrant. See In re Grand Jury Investigation
Concerning Solid State Devices, 130 F.3d 853, 857 (9th Cir. 1997). Considered
together, the elements forbid agents from obtaining “general warrants”
and instead require agents to conduct narrow seizures that attempt to “minimize[]
unwarranted intrusions upon privacy.” Andresen v. Maryland, 427 U.S.
463, 482 n.11 (1976). b. Warrants to Seize Hardware Compared to Warrants to Seize Information
The most important decision agents must make when describing the property in the warrant is whether the seizable property according to Rule 41 is the computer hardware itself, or merely the information that the hardware contains. If the computer hardware is itself contraband, an instrumentality of crime, or evidence, the focus of the warrant should be on the computer hardware itself and not on the information it contains. The warrant should describe the hardware and indicate that the hardware will be seized. See, e.g., Davis v. Gracey, 111 F.3d 1472, 1480 (10th Cir. 1997) (seizure of computer “equipment” used to store obscene pornography was proper because the equipment was an instrumentality). However, if the probable cause relates only to information stored on the computer, the warrant should focus on the content of the relevant files rather than on the storage devices which may happen to contain them. See, e.g., United States v. Gawrysiak, 972 F. Supp. 853, 860 (D.N.J. 1997), aff'd, 178 F.3d 1281 (3d Cir. 1999) (upholding seizure of “records [that] include information and/or data stored in the form of magnetic or electronic coding on computer media . . . which constitute evidence” of enumerated federal crimes). The warrant should describe the information based on its content (e.g., gambling records, evidence of a fraud scheme), and then request the authority to seize the information in whatever form the information may be stored. To determine whether the warrant should describe the computer hardware itself or the information it contains, agents should consult Appendix F and determine whether the hardware constitutes evidence, contraband, or an instrumentality that may itself be seizable according to Rule 41(a).
Agents should be particularly careful when seeking authority to seize a broad class of information. This often occurs when agents plan to search computers at a business. See, e.g., United States v. Leary, 846 F.2d 592, 594 (10th Cir. 1988). Agents cannot simply request permission to seize “all records” from an operating business unless agents have probable cause to believe that the criminal activity under investigation pervades the entire business. See United States v. Ford, 184 F.3d 566, 576 (6th Cir. 1999) (citing cases); In re Grand Jury Investigation Concerning Solid State Devices, 130 F.3d 853, 857 (9th Cir. 1997). Instead, the description of the files to be seized should include limiting phrases that can modify and limit the “all records” search. For example, agents may specify the crime under investigation, the target of the investigation if known, and the time frame of the records involved. See, e.g., United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (invalidating warrant for failure to name crime or limit seizure to documents authored during time frame under investigation ); Ford, 184 F.3d at 576 (“Failure to limit broad descriptive terms by relevant dates, when such dates are available to the police, will render a warrant overbroad.”); In the Matter of the Application of Lafayette Academy, 610 F.2d 1, 3 (1st Cir. 1979); United States v. Hunter, 13 F. Supp.2d 574, 584 (D. Vt. 1998) (concluding that warrant to seize “[a]ll computers” not sufficiently particular where description “did not indicate the specific crimes for which the equipment was sought, nor were the supporting affidavits or the limits contained in the searching instructions incorporated by reference.”). In light of these cases, agents should narrow “all records” searches with limiting language where necessary and appropriate. One effective approach is to begin with an “all records” description; add limiting language stating the crime, the suspects, and relevant time period if applicable; include explicit examples of the records to be seized; and then indicate that the records may be seized in any form, whether electronic or non-electronic. For example, when drafting a warrant to search a computer at a business for evidence of a drug trafficking crime, agents might describe the property to be seized in the following way:
Of course, agents do not need to follow this approach in every case; judicial review of search warrants is “commonsensical” and “practical,” rather than “overly technical.” United States v. Ventresca, 380 U.S. 102, 108 (1965). When agents cannot know the precise form that records will take before the search occurs, a generic description must suffice. See Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997) (“Even a warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under investigation permit.”) (internal quotations omitted); United States v. London, 66 F.3d 1227, 1238 (1st Cir. 1995) (noting that where the defendant “operated a complex criminal enterprise where he mingled ‘innocent’ documents with apparently-innocent documents which, in fact, memorialized illegal transactions, . . . . [it] would have been difficult for the magistrate judge to be more limiting in phrasing the warrant's language, and for the executing officers to have been more discerning in determining what to seize.”); United States v. Sharfman, 448 F.2d 1352, 1354-55 (2d Cir. 1971); Gawrysiak, 972 F. Supp. at 861. Even an “all records” search seeking evidence of a particular criminal activity may be appropriate in certain circumstances. See also United States v. Hargus, 128 F.3d 1358, 1362-63 (10th Cir. 1997) (upholding seizure of “any and all records relating to the business” under investigation for mail fraud and money laundering); London, 66 F.3d at 1238 (upholding search for “books and records . . . and any other documents. . . which reflect unlawful gambling”); United States v. Riley, 906 F.2d 841, 844-45 (2d Cir. 1990) (upholding seizure of “items that constitute evidence of the offenses of conspiracy to distribute controlled substances”); United States v. Wayne, 903 F.2d 1188, 1195 (8th Cir. 1990) (upholding search for “documents and materials which may be associated with . . contraband [narcotics]”). c. Defending Computer Search Warrants Against Challenges Based on the Description of the “Things to be Seized” Search warrants may be subject to challenge when the description of the “things to be seized” does not comply fully with the best practices described above. Two challenges to the scope of warrants arise particularly often. First, defendants may claim that a warrant is insufficiently particular when the warrant authorizes the seizure of hardware but the affidavit only establishes probable cause to seize information. Second, defendants may claim that agents exceeded the scope of the warrant by seizing computer equipment if the warrant failed to state explicitly that the information to be seized might be in electronic form. The former challenge argues that the description of the property to be seized was too broad, and the latter argues that the description was not broad enough. 1)
When the warrant authorizes the seizure of hardware but the affidavit only establishes
Computer search warrants sometimes authorize the seizure of hardware when the probable cause in the affidavit relates solely to the computer files the hardware contains. For example, agents may have probable cause to believe that a suspect possesses evidence of a fraud scheme, and may draft the warrant to authorize the seizure of the defendant's computer equipment rather than the data stored within it. On a practical level, such a description makes sense because it accurately and precisely describes what the agents will do when they execute the warrant (i.e., seize the computer equipment). From a legal standpoint, however, the description is less than ideal: the equipment itself is not evidence of a crime, an instrumentality or contraband that may be seized according to Rule 41(a). See Appendix F; cf. In re Grand Jury Subpoena Duces Tecum, 846 F. Supp. 11, 13 (S.D.N.Y. 1994) (concluding that a subpoena demanding production of computer hardware instead of the information it contained was unreasonably broad pursuant to Fed. R. Crim. P. 17(c)). The physical equipment merely stores the information that the agents have probable cause to seize. Although the agents may need to seize the equipment in order to obtain the files it contains, the better practice is to describe the information rather than the equipment in the warrant itself. When agents obtain a warrant authorizing the seizure of equipment, defendants may claim that the description of the property to be seized is fatally overbroad. See, e.g., Davis v. Gracey, 111 F.3d 1472, 1479 (10th Cir. 1997).9 To date, the courts have adopted a forgiving stance when faced with this challenge. The courts have generally held that descriptions of hardware can satisfy the particularity requirement so long as the subsequent searches of the seized computer hardware appear reasonably likely to yield evidence of crime. See, e.g., United States v. Hay, 231 F.3d 630, 634 (9th Cir. 2000) (upholding seizure of “computer hardware” in search for materials containing child pornography); United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000) (upholding seizure of “computer equipment which may be, or is used to visually depict child pornography,” and noting that the affidavit accompanying the warrant explained why it would be necessary to seize the hardware and search it off-site for the images it contained); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (upholding seizure of “[a]ny and all computer software and hardware, . . . computer disks, disk drives” in a child pornography case because “[a]s a practical matter, the seizure and subsequent off-premises search of the computer and all available disks was about the narrowest definable search and seizure reasonably likely to obtain the [sought after] images”); United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (warrant permitting “blanket seizure” of computer equipment from defendant’s apartment not insufficiently particular when there was probable cause to believe that computer would contain evidence of child pornography offenses); United States v. Henson, 848 F.2d 1374 (6th Cir. 1988) (permitting seizure of “computer[s], computer terminals, … cables, printers, discs, floppy discs, [and] tapes” that could hold evidence of the defendants' odometer-tampering scheme because such language “is directed toward items likely to provide information concerning the [defendants'] involvement in the . . . scheme and therefore did not authorize the officers to seize more than what was reasonable under the circumstances”); United States v. Hersch, 1994 WL 568728, at *1 (D. Mass. 1994). Cf. United States v. Lamb, 945 F. Supp. 441, 458-59 (N.D.N.Y. 1996) (not insufficiently particular to ask for “[a]ll stored files” in AOL network account when searching account for obscene pornography, because as a practical matter all files need to be reviewed to determine which files contain the pornography). Despite these decisions, agents should comply with the technical requirements of Rule 41 when describing the “property to be seized” in a search warrant. If the property to be seized is information, the warrant should describe the information to be seized, rather than its container. Of course, when the information to be seized is contraband (such as child pornography), the container itself may be independently seized as an instrumentality. See Gracey, 111 F.3d at 1480 (seizure of computer “equipment” was proper in case involving obscenity because the hardware was an instrumentality of the crime). 2) When agents seize computer data and computer hardware but the warrant does not expressly authorize their seizure Search warrants sometimes fail to mention that information described in the warrant may appear in electronic form. For example, a search for “all records” relating to a conspiracy may list paper-world examples of record documents but neglect to state that the records may be stored within a computer. Agents executing the search who come across computer equipment may not know whether the warrant authorizes the seizure of the computers. If the agents do seize the computers, defense counsel may file a motion to suppress the evidence arguing that the computers seized were beyond the scope of the warrant. The
courts have generally permitted agents to seize computer equipment when agents
reasonably believe that the content described in the warrant may be stored there,
regardless of whether the warrant states expressly that the information may be
stored in electronic form. See, e.g., United States v. Musson,
650 F. Supp. 525, 532 (D. Colo. 1986). As the Tenth Circuit explained
in United States v. Reyes, 798 F.2d 380, 383 (10th Cir. 1986), “in
the age of modern technology and commercial availability of various forms of items,
the warrant c[an] not be expected to describe with exactitude the precise form
the records would take.” Accordingly, what matters is the substance
of the evidence, not its form, and the courts will defer to an executing agent's
reasonable construction of what property must be seized to obtain the evidence
described in the warrant. See United States v. Hill, 19 F.3d
984, 987-89 (5th Cir. 1994); Hessel v. O'Hearn, 977 F.2d 299 (7th Cir.
1992); United States v. Word, 806 F.2d 658, 661 (6th Cir. 1986); United
States v. Gomez-Soto, 723 F.2d 649, 655 (9th Cir. 1984) (“The failure
of the warrant to anticipate the precise container in which the material sought
might be found is not fatal.”). See also United States v.
Abbell, 963 F. Supp. 1178, 1997 (S.D. Fla. 1997) (noting that agents may legitimately
seize “[a] document which is implicitly within the scope of the warrant --
even if it is not specifically identified”). 3) General defenses to challenges of computer search warrants based on the description of the “things to be seized” Prosecutors
facing challenges to the particularity of computer search warrants have a number
of additional arguments that may save inartfully drawn warrants. First, prosecutors
can argue that the agents who executed the search had an objectively reasonable
good faith belief that the warrant was sufficiently particular. See
generally United States v. Leon, 468 U.S. 897, 922 (1984); Massachusetts
v. Shepard, 468 U.S. 981, 990-91 (1984). If true, the court will not
order suppression of the evidence. See, e.g., United States
v. Hunter, 13 F. Supp.2d 574, 584-85 (D. Vt. 1998) (holding that good faith
exception applied even though computer search warrant was insufficiently particular). Second,
prosecutors may argue that the broad description in the warrant must be read in
conjunction with a more particular description contained in the supporting affidavit. Although
the legal standards vary widely among the circuits, see Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 4.6(a) (1994),
most circuits permit the warrant to be construed with reference to the affidavit
for purposes of satisfying the particularity requirement in certain circumstances. Finally,
several circuits have held that courts can redact overbroad language and admit
evidence from overbroad seizures if the evidence admitted was seized pursuant
to sufficiently particular language. See United States v. Christine,
687 F.2d 749, 759 (3d Cir. 1982); Gomez-Soto, 723 F.2d at 654. Step 2: Establish Probable Cause in the Affidavit The second step in preparing a warrant to search and seize a computer is to write a sworn affidavit establishing probable cause to believe that contraband, evidence, fruits, or instrumentalities of crime exist in the location to be searched. See U.S. Const. Amend. IV (“no Warrants shall issue, but upon probable cause, supported by Oath or affirmation”); Fed. R. Crim. P. 41(b),(c). According to the Supreme Court, the affidavit must establish “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). This requires a practical, common-sense determination of the probabilities, based on a totality of the circumstances. See id. Of course, probable cause will not exist if the agent can only point to a “bare suspicion” that criminal evidence will be found in the place searched. See Brinegar v. United States, 338 U.S. 160, 175 (1949). Once a magistrate judge finds probable cause and issues the warrant, the magistrate's determination that probable cause existed is entitled to “great deference,” Gates, 462 U.S. at 236, and will be upheld so long as there is a “substantial basis for concluding that probable cause existed.” Id. at 238-39 (internal quotations omitted). Importantly, the probable cause requirement does not require agents to be clairvoyant in their knowledge of the precise forms of evidence or contraband that will exist in the location to be searched. For example, agents do not need probable cause to believe that the evidence sought will be found in computerized (as opposed to paper) form. See United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986) (noting that “in the age of modern technology . . . , the warrant could not be expected to describe with exactitude the precise forms the records would take”). Similarly, agents do not need to know exactly what statutory violation the evidence will help reveal, see United States v. Prandy-Binett, 995 F.2d 1069, 1073 (D.C. Cir. 1993), and do not need to know who owns the property to be searched and seized, see United States v. McNally, 473 F.2d 934, 942 (3d Cir. 1973). The probable cause standard simply requires agents to establish a fair probability that contraband or evidence of a crime will be found in the particular place to be searched. See Gates, 462 U.S. at 238. Of course, agents who have particular knowledge as to the form of evidence or contraband that exists at the place to be searched should articulate that knowledge fully in the affidavit. Probable cause challenges to computer search warrants arise particularly often in cases involving the possession and transmission of child pornography images.10 For example, defendants often claim that the passage of time between the warrant application and the occurrence of the incriminating facts alleged in the affidavit left the magistrate judge without sufficient reason to believe that images of child pornography would be found in the defendant's computers. The courts have generally found little merit in these “staleness” arguments, in part because the courts have taken judicial notice of the fact that collectors of child pornography rarely dispose of such material. See, e.g., United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997); United States v. Sassani, 139 F.3d 895, 1998 WL 89875, at *4-5 (4th Cir. 1998) (unpublished) (citing cases). Probable cause challenges may also arise when supporting evidence in an affidavit derives heavily from records of a particular Internet account or Internet Protocol (“IP”) address. The problem is a practical one: generally speaking, the fact that an account or address was used does not establish conclusively the identity or location of the particular person who used it. As a result, an affidavit based heavily on account or IP address logs must demonstrate a sufficient connection between the logs and the location to be searched to establish “a fair probability that contraband or evidence of a crime will be found in [the] particular place” to be searched. Gates, 462 U.S. at 238. See, e.g., United States v. Hay, 231 F.3d 630, 634 (9th Cir. 2000) (evidence that child pornography images were sent to an IP address associated with the defendant’s apartment, combined with other evidence of the defendant’s interest in young children, created probable cause to search the defendant’s apartment for child pornography); United States v. Grant, 218 F.3d 72, 76 (1st Cir. 2000) (evidence that an Internet account belonging to the defendant was involved in criminal activity on several occasions, and that the defendant’s car was parked at his residence during at least one such occasion, created probable cause to search the defendant’s residence). Step 3: In the Affidavit Supporting the Warrant, Include an Explanation of the Search Strategy (Such as the Need to Conduct an Off-site Search) as Well as the Practical and Legal Considerations That Will Govern the Execution of the Search The third step in drafting a successful computer search warrant is to explain both the search strategy and the practical considerations underlying the strategy in the affidavit. For example, if agents expect that they may need to seize a personal computer and search it off-site to recover the relevant evidence, the affidavit should explain this expectation and its basis to the magistrate judge. The affidavit should inform the court of the practical limitations of conducting an on-site search, and should articulate the plan to remove the entire computer from the site if it becomes necessary. The affidavit should also explain what techniques the agents expect to use to search the computer for the specific files that represent evidence of crime and may be intermingled with entirely innocuous documents. If the search strategy has been influenced by legal considerations such as potential PPA liability, the affidavit should explain how and why in the affidavit. If the agents have authority to seize hardware because the hardware itself is evidence, contraband, or an instrumentality of crime, the affidavit should explain whether the agents intend to search the hardware following the seizure, and, if so, for what. In sum, the affidavit should address all of the relevant practical and legal issues that the agents have considered in the course of planning the search, and should explain the course of conduct that the agents will follow as a result. Although no particular language is required, Appendix F offers sample language that agents may find useful in many situations. Finally, when the search strategy is complicated or the affidavit is under seal, it is a good practice for agents to reproduce the explanation of the search strategy contained in the affidavit as an attachment to the warrant itself. The reasons for articulating the search strategy in the affidavit are both practical and legal. On a practical level, explaining the search strategy in the affidavit creates a document that both the court and the agents can read and refer to as a guide to the execution of the search. See Nat’l City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir. 1980) (“[W]e note with approval the care taken by the Government in the search involved here. . . . Such self-regulatory care [in executing a warrant] is conduct highly becoming to the Government.”). Similarly, if the explanation of the search strategy is reproduced as an attachment to the warrant and given to the subject of the search pursuant to Rule 41(d), the explanation permits the owner of the searched property to satisfy himself during the search that the agents’ conduct is within the scope of the warrant. See Michigan v. Tyler, 436 U.S. 499, 508 (1978) (noting that “a major function of the warrant is to provide the property owner with sufficient information to reassure him of the entry's legality”). Finally, as a legal matter, explaining the search strategy in the affidavit helps to counter defense counsel motions to suppress based on the agents’ alleged “flagrant disregard” of the warrant during the execution of the search. To understand motions to suppress based on the “flagrant disregard” standard, agents and prosecutors should recall the limitations on search and seizure imposed by Rule 41 and the Fourth Amendment. In general, the Fourth Amendment and Rule 41 limit agents to searching for and seizing property described in the warrant that is itself evidence, contraband, fruits, or instrumentalities of crime. See United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982); see also Appendix F (describing property that may be seized according to Rule 41). If agents execute a warrant and seize additional property not described in the warrant, defense counsel can file a motion to suppress the additional evidence. Motions to suppress such additional evidence are filed relatively rarely because, if granted, they result only in the suppression of the property not named in the warrant. See United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997). On the other hand, defense counsel will often attempt to use the seizure of additional property as the basis for a motion to suppress all of the evidence obtained in a search. To be entitled to the extreme remedy of blanket suppression, the defendant must establish that the seizure of additional materials proves that the agents executed the warrant in “flagrant disregard” of its terms. See, e.g., United States v. Le, 173 F.3d 1258, 1269 (10th Cir. 1999); United States v. Matias, 836 F.2d 744, 747-48 (2d Cir. 1988) (citing cases). A search is executed in “flagrant disregard” of its terms when the officers so grossly exceed the scope of the warrant during execution that the authorized search appears to be merely a pretext for a ‘fishing expedition’ through the target’s private property. See, e.g., United States v. Liu, – F.3d –, 2000 WL 1876779 (2d Cir. 2000); United States v. Foster, 100 F.3d 846, 851 (10th Cir. 1996); United States v. Young, 877 F.2d 1099, 1105-06 (1st Cir. 1989). Motions to suppress alleging “flagrant disregard” are common in computer searches because, for practical and technical reasons, agents executing computer searches frequently must seize hardware or files that are not described in the warrant. For example, agents who have probable cause to believe that evidence of a defendant's fraud scheme is stored on the defendant's home computer may have to seize the entire computer and search it off-site. See discussion supra. Defense lawyers often argue that by seizing more than the specific computer files named in the warrant, the agents “flagrantly disregarded” the seizure authority granted by the warrant. See, e.g., United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988); United States v. Hunter, 13 F. Supp.2d 574, 585 (D. Vt. 1998); United States v. Gawryisiak, 972 F. Supp. 853, 865 (D.N.J. 1997), aff'd, 178 F.3d 1281 (3d Cir. 1999); United States v. Sissler, 1991 WL 239000, at *3 (W.D. Mich. 1991), aff'd, 966 F.2d 1455 (6th Cir. 1992); United States v. Schwimmer, 692 F. Supp. 119, 126 (E.D.N.Y. 1988). Prosecutors can best respond to “flagrant disregard” motions by showing that any seizure of property not named in the warrant resulted from a good faith response to inherent practical difficulties, rather than a wish to conduct a general search of the defendant's property under the guise of a narrow warrant. The courts have recognized the practical difficulties that agents face in conducting computer searches for specific files, and have approved off-site searches despite the incidental seizure of additional property. See, e.g., Davis v. Gracey, 111 F.3d 1472, 1280 (10th Cir. 1997) (noting “the obvious difficulties attendant in separating the contents of electronic storage [sought as evidence] from the computer hardware [seized] during the course of a search”); United States v. Schandl, 947 F.2d 462, 465-466 (11th Cir. 1991) (noting that an on-site search “might have been far more disruptive” than the off-site search conducted); Henson, 848 F.2d at 1383-84 (“We do not think it is reasonable to have required the officers to sift through the large mass of documents and computer files found in the [defendant's] office, in an effort to segregate those few papers that were outside the warrant.”); United States v. Scott-Emuakpor, 2000 WL 288443, at *7 (W.D. Mich. 2000) (noting “the specific problems associated with conducting a search for computerized records” that justify an off-site search); Gawrysiak, 972 F. Supp. at 866 (“The Fourth Amendment's mandate of reasonableness does not require the agent to spend days at the site viewing the computer screens to determine precisely which documents may be copied within the scope of the warrant.”); Sissler, 1991 WL 239000, at *4 (“The police . . . were not obligated to inspect the computer and disks at the . . . residence because passwords and other security devices are often used to protect the information stored in them. Obviously, the police were permitted to remove them from the . . . residence so that a computer expert could attempt to 'crack' these security measures, a process that takes some time and effort. Like the seizure of documents, the seizure of the computer hardware and software was motivated by considerations of practicality. Therefore, the alleged carte blanche seizure of them was not a 'flagrant disregard' for the limitations of a search warrant.”). See also United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (“It is no easy task to search a well-laden hard drive by going through all of the information it contains . . . . The record shows that the mechanics of the search for images later performed [off-site] could not readily have been done on the spot.”); United States v. Lamb, 945 F. Supp. 4414, 62 (N.D.N.Y. 1996) (“[I]f some of the image files are stored on the internal hard drive of the computer, removing the computer to an FBI office or lab is likely to be the only practical way of examining its contents.”). The decisions permitting off-site computer searches are bolstered by analogous ‘physical-world’ cases that have authorized agents to remove file cabinets and boxes of paper documents so that agents can review the contents off-site for the documents named in the warrant. See, e.g., United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (concluding that “wholesale seizure of file cabinets and miscellaneous papers” did not establish flagrant disregard because the seizure “was motivated by the impracticability of on-site sorting and the time constraints of executing a daytime search warrant”); Crooker v. Mulligan, 788 F.2d 809, 812 (1st Cir. 1986) (noting cases “upholding the seizure of documents, both incriminating and innocuous, which are not specified in a warrant but are intermingled, in a single unit, with relevant documents”); United States v. Tamura, 694 F.2d 591, 596 (9th Cir. 1982) (ruling that the district court properly denied suppression motion “where the Government's wholesale seizures were motivated by considerations of practicality rather than by a desire to engage in indiscriminate 'fishing'”); United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982) (“If commingling prevents on-site inspection, and no other practicable alternative exists, the entire property may be seizable, at least temporarily.”). Explaining the agent's search strategy and the practical considerations underlying the strategy in the affidavit can help ensure that the execution of the search will not be deemed in “flagrant disregard” of the warrant. Cf.United States v. Hay, 231 F.3d 630, 634 (9th Cir. 2000) (suggesting that a magistrate judge’s authorization of a search supported by an affidavit that explained the need for an off-site search of a computer constituted “the magistrate judge’s authorization” of the off-site search); United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000) (relying on the explanation of the search strategy contained in the affidavit in the course of holding that a computer warrant was not overbroad). A careful explanation of the search strategy illustrates the agent's good faith and due care, articulates the practical concerns driving the search, and permits the judge to authorize the strategy described in the affidavit. A search that complies with the strategy explained in the supporting affidavit will not be in flagrant disregard of the warrant. See, e.g., Gawrysiak, 973 F. Supp. at 866 (commending agents for conducting a computer search with “considerable care” based on the submission of a “detail-rich” supporting affidavit and a written search plan).
When agents conduct a search for computer files and other electronic evidence stored in a hard drive or other storage device, the evidence may be commingled with data and files that have no relation to the crime under investigation. Figuring out how best to locate and retrieve the evidence amidst the unrelated data is more of an art than a science, and often requires significant technical expertise and careful attention to the facts. As a result, agents may or may not know at the time the warrant is obtained how the storage device should be searched, and, in beginning the search, may or may not know whether it will be possible to locate the evidence without conducting an extensive search through unrelated files. When agents have a factual basis for believing that they can locate the evidence using a specific set of techniques, the affidavit should explain the techniques that the agents plan to use to distinguish incriminating documents from commingled documents. Depending on the circumstances, it may be helpful to consult with experts in computer forensics to determine what kind of search can be conducted to locate the particular files described in the warrant. In some cases, a “key word” search or similar surgical approach may be possible. Such an approach may permit law enforcement to locate the incriminating files without conducting an extensive search through innocent files that happen to be mixed together with the incriminating files that are the target of the search. Notably, the Fourth Amendment does not generally require such an approach. See United States v. Hunter, 13 F. Supp.2d 574, 584 (D. Vt. 1998) (“Computer records searches are no less constitutional than searches of physical records, where innocuous documents may be scanned to ascertain their relevancy.”); United States v. Lloyd, 1998 WL 846822, at *3 (E.D.N.Y. 1998). However, in extensive dicta, the Tenth Circuit has indicated that it favors such a narrow approach because it minimizes the possibility that the government will be able to use a narrow warrant to justify a broader search. See United States v. Carey, 172 F.3d 1268, 1275-76, 1275 n.8. (10th Cir. 1999) (citing Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J. L. &. Tech. 75, 108 (1994)); Campos, 221 F.3d at 1148. See also Gawrysiak, 972 F. Supp. at 866 (suggesting in dicta that agents executing a search for computer files “could have at the least checked the date on which each file was created, and avoided copying those files that were created before the time period covered by the warrant”). Of course, in many cases a narrow approach will be technically impossible. The targeted files may be mislabeled, hidden, oddly configured, written using code words to escape detection, encrypted, or otherwise impossible to find using a simple technique such as a “key word” search. Because some judges may fail to appreciate such technical difficulties, it is a good practice as a matter of policy for agents to discuss these issues in the affidavit if it appears that a narrow search will not be effective. In such cases, a more extensive search through innocent files will be necessary to determine which files fall within the scope of the warrant. Explaining these practical needs in the affidavit can make clear at the outset why an extensive search will not be in “flagrant disregard” of the warrant, and why the extensive search complies fully with traditional Fourth Amendment principles. See Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976) (“In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”); United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990) (noting that records searches permit agents to search through many papers because “few people keep documents of their criminal transactions in a folder marked ‘[crime] records.’”); United States v. Gray, 78 F. Supp.2d 524, 530 (E.D. Va. 1999) (noting that agents executing a search for computer files “are not required to accept as accurate any file name or suffix and [to] limit [their] search accordingly,” because criminals may “intentionally mislabel files, or attempt to bury incriminating files within innocuously named directories.”); Hunter, 13 F. Supp.2d at 584; United States v. Sissler, 1991 WL 239000, at *4 (W.D. Mich. 1991) (“[T]he police were not obligated to give deference to the descriptive labels placed on the discs by [the defendant]. Otherwise, records of illicit activity could be shielded from seizure by simply placing an innocuous label on the computer disk containing them.”).
When agents
have probable cause to seize hardware because it is evidence, contraband, or an
instrumentality of crime, the warrant will ordinarily describe the property to
be seized as the hardware itself. In many of these cases, however, the agents
will plan to search the hardware after it is seized for electronic data stored
inside the hardware that also constitute evidence or contraband. It is a
good practice for agents to inform the magistrate of this plan in the supporting
affidavit. Although the courts have upheld searches when agents did not explain
this expectation in the affidavit, see, e.g., United States v.
Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (discussed infra), the
better practice is to inform the magistrate in the affidavit of the agents’
plan to search the hardware following the seizure. In
many cases, computer equipment that has been seized will be sent to a laboratory
for forensic examination. The time that may elapse before a technical specialist
completes the forensic examination varies widely, depending on the hardware itself,
the evidence sought, and the urgency of the search. In most cases, however,
the elapsed time is a matter of months. Several legal issues may arise during
the post-seizure period that implicate the government's right to retain and search
the computers in their custody. 1. Searching Computers Already in Law Enforcement Custody
Agents often seize a computer pursuant to a warrant, and then ask whether they need a second warrant to search the computer. Whether a second warrant is needed depends on the purpose of the search. If agents plan to search the computer for the information that was the target of the original seizure, no second warrant is required. For example, in United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998), investigators obtained a warrant to seize the defendant's “computer diskettes . . . and the defendant's computer” based on probable cause to believe it contained child pornography. The investigators seized the computer and then searched it in police custody, finding child pornography images. On appeal following conviction, the defendant claimed that the investigators lacked the authority to search the computer because the warrant merely authorized the seizure of equipment. The Tenth Circuit rejected the argument, concluding that a warrant to seize computer equipment permitted agents to search the equipment. See id. at 1248. See also United States v. Gray, 78 F. Supp.2d 524, 530-31 (E.D. Va. 1999) (holding that initial warrant authorizing search for evidence of computer hacking justified a subsequent search for such evidence, even though agents uncovered incriminating evidence beyond the scope of the warrant in the course of executing the search). If investigators seize computer equipment for the evidence it contains and later decide to search the equipment for different evidence, however, they should obtain a second warrant. In United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), detectives obtained a warrant to search the defendant's computer for records of narcotics sales. Searching the computer back at the police station, a detective discovered images of child pornography. At that point, the detective “abandoned the search for drug-related evidence” and instead searched the entire hard drive for evidence of child pornography. Id. at 1277-78. The Tenth Circuit suppressed the child pornography, holding that the subsequent search for child pornography was “impermissible general rummaging” that exceeded the scope of the original warrant. Id. at 1276 (Baldock, J., concurring); Id. at 1273. CompareGray, 78 F. Supp.2d at 530-31 (upholding search where agent discovered child pornography in the course of looking for evidence of computer hacking pursuant to a warrant, and then obtained a second warrant before searching the computer for child pornography). Notably,
Carey’s focus on the agent’s subjective intent may reflect a
somewhat outdated view of the Fourth Amendment. The Supreme Court’s
recent Fourth Amendment cases generally have declined to examine an agent’s
subjective intent, and instead have focused on whether the circumstances, viewed
objectively, justified the agent’s conduct. See, e.g.,
Whren v. United States, 517 U.S. 806, 813 (1996); Horton v. California,
496 U.S. 128, 138 (1990). Relying on these precedents, several courts
have indicated that an agent’s subjective intent during the execution of
a warrant no longer determines whether the search exceeded the scope of the warrant
and violated the Fourth Amendment. See United States v. Van Dreel,
155 F.3d 902, 905 (7th Cir. 1998) (“[U]nder Whren, . . . once probable
cause exists, and a valid warrant has been issued, the officer’s subjective
intent in conducting the search is irrelevant.”); United States v. Ewain,
88 F.3d 689, 694 (9th Cir. 1996) (“Using a subjective criterion would be
inconsistent with Horton, and would make suppression depend too much on
how the police tell their story, rather than on what they did.”). According
to these cases, the proper inquiry is whether, from an objective perspective,
the search that the agents actually conducted was consistent with the warrant
obtained. See Ewain, 88 F.3d at 694. The agent’s subjective
intent is either “irrelevant,” Van Dreel, 155 F.3d at 905, or
else merely one factor in the overall determination of “whether the police
confined their search to what was permitted by the search warrant.” Ewain,
88 F.3d at 694. 2. The Permissible Time Period For Examining Seized Computers
Despite the best efforts of the government to analyze seized computers quickly, the forensic examination of seized computers often takes months to complete because computers can store enormous amounts of data. As a result, suspects whose computers have been seized may be deprived of their computer hardware for an extended period of time. Neither Rule 41 nor the Fourth Amendment imposes any specific limitation on the time period of the government's forensic examination. The government ordinarily may retain the seized computer and examine its contents in a careful and deliberate manner without legal restrictions, subject only to Rule 41(e)'s authorization that a “person aggrieved” by the seizure of property may bring a motion for the return of the property (see “Rule 41(e) Motions for Return of Property,” infra).11 A few magistrate judges have taken a different view, however. Several magistrate judges have refused to sign search warrants authorizing the seizure of computers unless the government conducts the forensic examination in a short period of time, such as thirty days. Some magistrate judges have imposed time limits as short as seven days, and several have imposed specific time limits when agents apply for a warrant to seize computers from operating businesses. In support of these limitations, a few magistrate judges have expressed their concern that it might be constitutionally “unreasonable” under the Fourth Amendment for the government to deprive individuals of their computers for more than a short period of time. Other magistrates have suggested that Rule 41's requirement that agents execute a “search” within 10 days of obtaining the warrant might apply to the forensic analysis of the computer as well as the initial search and seizure. See Fed. R. Crim. P. 41(c)(1). The law does not expressly authorize magistrate judges to issue warrants that impose time limits on law enforcement’s examination of seized evidence. Although the relevant case law is sparse, it suggests that magistrate judges lack the legal authority to refuse to issue search warrants on the ground that they believe that the agents may, in the future, execute the warrants in an unconstitutional fashion. See Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. Rev. 1173, 1196 (1987) (“The few cases on [whether a magistrate judge can refuse to issue a warrant on the ground that the search may be executed unconstitutionally] hold that a judge has a ‘ministerial’ duty to issue a warrant after ‘probable cause’ has been established.”); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611, 613 (1st Cir. 1979) (noting the limited role of magistrate judges in issuing search warrants). As the Supreme Court suggested in one early case, the proper course is for the magistrate to issue the warrant so long as probable cause exists, and then to permit the parties to litigate the constitutional issues afterwards. See Ex Parte United States, 287 U.S. 241, 250 (1932) (“The refusal of the trial court to issue a warrant . . . is, in reality and effect, a refusal to permit the case to come to a hearing upon either questions of law or fact, and falls a little short of a refusal to permit the enforcement of the law.”). Prosecutors should also be prepared to explain to magistrate judges why a forensic search for files stored in a seized computer need not occur within 10 days of obtaining the warrant. Rule 41(c)(1) requires that the agents who obtain a warrant must “search, within a specified period of time not to exceed 10 days, the person or place named for the property or person specified.” This rule directs agents to search the place named in the warrant and seize the property specified within 10 days so that the warrant does not become ‘stale’ before it is executed. See United States v. Sanchez, 689 F.2d 508, 512 n.5 (5th Cir. 1982). This rule does not apply to the forensic analysis of evidence that has already been seized, however; even if such analysis involves a Fourth Amendment “search” in some cases, it plainly does not occur in “the place . . . named” in the warrant. An analogy to paper documents may be helpful. A Rule 41 warrant that authorizes the seizure of a book requires that the book must be seized from the place described in the warrant within 10 days. However, neither the warrant nor Rule 41 requires law enforcement to examine the book and complete any forensic analysis of its pages within the same 10-day period. Cf. Commonwealth v. Ellis, 10 Mass. L. Rptr. 429, 1999 WL 815818, at *8-9 (Mass. Super. 1999) (interpreting analogous state law provision) (“The ongoing search of the computer's memory need not have been accomplished within the . . . period required for return of the warrant.”). Although the legal basis for imposing time limits on forensic analysis is unclear, a magistrate judge’s refusal to issue a computer search warrant absent time limitations can create significant headaches for prosecutors. As a practical matter, prosecutors often have little choice but to go along with the magistrate judge's wishes. A judge's refusal to sign a search warrant generally is not an appealable final order, and the prosecutor's only recourse is to turn to another judge, who will want to know why the first judge refused to sign the warrant. See United States v. Savides, 658 F. Supp. 1399, 1404 (N.D. Ill. 1987), aff'd in relevantpartsub. nom. United States v. Pace, 898 F.2d 1218, 1230 (7th Cir. 1990). As a practical matter, then, prosecutors will often have little choice but to try to convince the judge not to impose a time limit, and if that fails, to request extensions when the time period proves impossible to follow. At least one court has adopted the severe position that suppression is appropriate when the government fails to comply with court-imposed limits on the time period for reviewing seized computers. In United States v. Brunette, 76 F. Supp.2d 30 (D. Me. 1999), a magistrate judge permitted agents to seize the computers of a child pornography suspect on the condition that the agents searched through the computers for evidence “within 30 days.” The agents executed the search five days later, and seized several computers. A few days before the thirty-day period elapsed, the government applied for and obtained a thirty-day extension of the time for review. The agents then reviewed all but one of the seized computers within the thirty-day extension period, and found hundreds of images of child pornography. However, the agents did not begin reviewing the last of the computers until two days after the extension period had elapsed. The defendant moved for suppression of the child pornography images found in the last computer, on the ground that the search outside of the sixty-day period violated the terms of the warrant and subsequent extension order. The court agreed, stating that “because the Government failed to adhere to the requirements of the search warrant and subsequent order, any evidence gathered from the . . . computer is suppressed.” Id. at 42. The
result in Brunette makes little sense either under Rule 41 or the Fourth
Amendment. Even assuming that a magistrate judge has the authority to impose
time constraints on forensic testing in the first place, it seems incongruous
to impose suppression for violations of such conditions when analogous violations
of Rule 41 itself would not result in suppression. CompareBrunettewith
United States v. Twenty-Two Thousand, Two Hundred Eighty Seven Dollars ($22,287.00),
U.S. Currency, 709 F.2d 442, 448 (6th Cir. 1983) (rejecting suppression when
agents began search “shortly after” 10 p.m., even though Rule 41 states
that all searches must be conducted between 6:00 a.m. and 10 p.m.). This
is especially true when the hardware to be searched was a container of contraband
child pornography, and therefore was itself an instrumentality of crime that was
not subject to return. 3. Rule 41(e) Motions for Return of Property
Rule 41(e) has particular importance in computer search cases because it permits owners of seized computer equipment to move for the return of the equipment before an indictment is filed. In some cases, defendants will file such motions because they believe that the seizure of their equipment violated the Fourth Amendment. If they are correct, the equipment must be returned. See, e.g., In re Grand Jury Investigation Concerning Solid States Devices, Inc., 130 F.3d 853 (9th Cir. 1997). Rule 41(e) also permits owners to move for a return of their property when the seizure was lawful, but the movant is “aggrieved by the government's continued possession of the seized property.” Id. at 856. The multi-functionality of computer equipment occasionally leads to Rule 41(e) motions on this basis. For example, a suspect under investigation for computer hacking may file a motion claiming that he must have his computer back to calculate his taxes or check his e-mail. Similarly, a business suspected of fraud may file a motion for the return of its equipment claiming that it needs the equipment returned or else the business will suffer. Owners of properly seized computer equipment must overcome several formidable barriers before a court will order the government to return the equipment. First, the owner must convince the court that it should exercise equitable jurisdiction over the owner's claim. See Floyd v. United States, 860 F.2d 999, 1003 (10th Cir. 1988) (“Rule 41(e) jurisdiction should be exercised with caution and restraint.”). Although the jurisdictional standards vary widely among different courts, most courts will assert jurisdiction over a Rule 41(e) motion only if the movant establishes: 1) that being deprived of possession of the property causes 'irreparable injury', and 2) that the movant is otherwise without a remedy at law. See In re the Matter of the Search of Kitty's East, 905 F.2d 1367, 13770-71 (10th Cir. 1990). Compare Ramsden v. United States, 2 F.3d 322, 325 (9th Cir. 1993) (articulating four-factor jurisdictional test from pre-1989 version of Rule 41(e)). If the movant established these elements, the court will move to the merits of the claim. On the merits, seized property will be returned only if the government's continued possession is unreasonable. See Ramsden, 2 F.3d at 326. This test requires the court to weigh the government's interest in continued possession of the property with the owner's interest in the property's return. See United States v. Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1304 (3d Cir. 1978). In particular:
Advisory Committee Notes to the 1989 Amendment of Rule 41(e) (quoted in Ramsden, 2 F.3d at 326; Kitty's East, 905 F.2d at 1375). Rule 41(e) motions requesting the return of properly seized computer equipment succeed only rarely. First, courts will usually decline to exercise jurisdiction over the motion if the government has offered the property owner an electronic copy of the seized computer files. See In re Search Warrant Executed February 1, 1995, 1995 WL 406276, at *2 (S.D.N.Y. 1995) (concluding that owner of seized laptop computer did not show irreparable harm where government offered to allow owner to copy files it contained); United States v. East Side Ophthalmology, 1996 WL 384891, at *4 (S.D.N.Y. 1996). See also Standard Drywall, Inc. v. United States, 668 F.2d 156, 157 n.2. (2d Cir. 1982) (“We seriously question whether, in the absence of seizure of some unique property or privileged documents, a party could ever demonstrate irreparable harm [justifying jurisdiction] when the Government either provides the party with copies of the items seized or returns the originals to the party and presents the copies to the jury.”). Second,
courts that reach the merits generally find that the government's interest in
the computer equipment outweighs the defendant's so long as a criminal prosecution
or forfeiture proceeding is in the works. See United States v.
Stowe, 1996 WL 467238 (N.D. Ill. 1996) (continued retention of computer equipment
is reasonable after 18 months where government claimed that investigation was
ongoing and defendant failed to articulate his need for the equipment's return);
In the Matter of Search Warrant for K-Sports Imports, Inc., 163 F.R.D.
594, 597 (C.D. Cal. 1995) (denying motion for return of computer records relating
to pending forfeiture proceedings). See alsoJohnson v. United States,
971 F. Supp. 862, 868 (D.N.J. 1997) (denying Rule 41(e) motion to return bank's
computer tapes because bank was no longer an operating business). If the
government does not plan to use the computers in further proceedings, however,
the computer equipment must be returned. See United States v. Moore,
188 F.3d 516, 1999 WL 650568, at *6 (9th Cir. 1999) (unpublished) (ordering return
of computer where “the government's need for retention of the computer for
use in another proceeding now appears . . . remote”) ; K-Sports Imports,
Inc., 163 F.R.D. at 597. Further, a court may grant a Rule 41(e) motion
if the defendant cannot operate his business without the seized computer equipment
and the government can work equally well from a copy of the seized files. See
United States v. Bryant, 1995 WL 555700, at *3 (S.D.N.Y. 1995) (referring
to magistrate judge's prior unpublished ruling ordering the return of computer
equipment, and stating that “the Magistrate Judge found that defendant needed
this machinery to operate his business”).
The stored communication portion of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2701-11, creates statutory privacy rights for customers and subscribers of computer network service providers. In a broad sense, ECPA exists largely to “fill in the gaps” left by the uncertain application of Fourth Amendment protections to cyberspace. To understand these gaps, consider the legal protections we have in our homes. The Fourth Amendment clearly protects our homes in the physical world: absent special circumstances, the government must first obtain a warrant before it searches there. When we use a computer network such as the Internet, however, we do not have a physical “home.” Instead, the closest most users have to a “home” is a network account consisting of a block of computer memory allocated to them but owned by a network service provider such as America Online. If law enforcement investigators need the contents of a network account or information about how it is used, they do not need to go to the user to get that information. Instead, the government can go to the network provider and obtain the information directly from the provider. Although the Fourth Amendment generally requires the government to obtain a warrant to search a home, it does not require the government to obtain a warrant to obtain the stored contents of a network account. Instead, the Fourth Amendment generally permits the government to issue a subpoena to a network provider ordering the provider to divulge the contents of an account.12 ECPA addresses this inequality by offering network account holders a range of statutory privacy rights against access to stored account information held by network service providers. Because ECPA is an unusually complicated statute, it can be helpful when approaching the statute for the first time to understand the intent of its drafters. The structure of ECPA reflects a series of classifications that indicate the drafters’ judgments about what kinds of information implicate greater or lesser privacy interests. For example, the drafters saw different privacy interests at stake in stored e-mails than in subscriber account information. Similarly, the drafters believed that computing services available “to the public” required more strict regulation than services that are not available to the public. Perhaps this judgment reflects the reality that providers available to the public are not likely to have close relationships with their customers, and therefore might have less incentive to protect their customers’ privacy. To protect the array of privacy interests identified by its drafters, ECPA offers varying degrees of legal protection depending on the perceived seriousness of the privacy interest involved. Some information can be obtained from providers with a mere subpoena; other information requires a special court order; and still other information requires a search warrant. In theory, the greater the privacy interest, the greater the privacy protection. Navigating through ECPA requires agents and prosecutors to apply the various classifications devised by ECPA's drafters to the facts of each case before they can figure out the proper procedure for obtaining the information sought. First, they must classify the network services provider (e.g., does the provider provide “electronic communication service,” “remote computing service,” or neither). Next, they must classify the information sought (e.g., is the information content “in electronic storage,” content held by a remote computing service, “a record . . . pertaining to a subscriber,” or basic subscriber information). Third, they must determine whether they are seeking to compel disclosure, or seeking to accept information disclosed voluntarily by the provider. If they seek compelled disclosure, they need to determine whether they need a search warrant, a 2703(d) court order, or a subpoena to compel the disclosure. If they are seeking to accept information voluntarily disclosed, they must determine whether the statute permits the disclosure. The chart contained in Part F of this chapter provides a useful way to apply these distinctions in practice. The organization
of this chapter will follow ECPA’s various classifications. Part B explains
how agents and prosecutors can classify providers, so as to distinguish providers
of “electronic communications service” from providers of “remote
computing service.” Part C explains the different kinds of information
that providers can divulge, such as content “in electronic storage”
and “records . . . pertaining to a subscriber.” Part D explains
the legal process that agents and prosecutors must follow to compel a provider
to disclose information. Part E looks at the flip side of this problem, and
explains when providers may voluntarily disclose account information. A
summary chart appears in Part F. The chapter ends with two additional sections. Part
G discusses three important issues that may arise when agents obtain records from
network providers: steps to preserve evidence, steps to prevent disclosure to
subjects, and possible conflicts between ECPA and the Cable Act. Finally,
Part H discusses the remedies that courts may impose following violations of ECPA.
B. Providers of Electronic Communication Service vs. Remote Computing Service ECPA classifies providers covered by the statute into “provider[s] of electronic communication service” and “provider[s] of remote computing service.” To understand these terms, it helps to recall the era in which ECPA was drafted. In the mid 1980s, network account holders generally used third-party network service providers for two reasons. First, account holders used their accounts to send and receive communications such as e-mail. The use of computer networks to communicate prompted privacy concerns because in the course of sending and retrieving messages, it was common for several computers to copy the messages and store them temporarily. Copies that were created by these providers of “electronic communications service” and placed in a temporary “electronic storage” in the course of transmission sometimes stayed on a provider’s computer for several months. See H.R. Rep. No. 99-647, at 22 (1986). The second reason account holders used network service providers was to outsource tasks. For example, users paid to have remote computers store extra files, or process large amounts of data. When users hired such commercial “remote computing services” to perform tasks for them, they would send a copy of their private communications to a third-party computing service, which retained the data for later reference. Remote computing services raised privacy concerns because the service providers often retained copies of their customers' files. See S. Rep. No. 99-541 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557. ECPA protects communications
held by providers of electronic communication service when those communications
are in “electronic storage,” as well as communications held by providers
of remote computing service. To that end, the statute defines “electronic
communication service,” “electronic storage,” and “remote
computing service” in the following way: “Electronic communication service” An electronic communication service (“ECS”) is “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15). For example, “telephone companies and electronic mail companies” generally act as providers of electronic communication services. See S. Rep. No. 99-541 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3568. See Jessup-Morgan v. America Online, Inc., 20 F. Supp.2d 1105, 1108 (E.D. Mich. 1998) (America Online); FTC v. Netscape Communications Corp., 196 F.R.D. 559 (N.D. Cal. 2000) (Netscape). The legislative history and case law construing the definition of ECS indicate that whether a company provides ECS is highly contextual. The central issue is the company’s role in providing the ability to send or receive the precise communication at issue, regardless of the company’s primary business. See H.R. Rep. No. 99-647, at 65 (1986). Any company or government entity that provides others with means of communicating electronically can be a “provider of electronic communications service” relating to the communications it provides, even if providing communications service is merely incidental to the provider’s primary function. See Bohach v. City of Reno, 932 F. Supp. 1232, 1236 (D. Nev. 1996) (city that provided pager service to its police officers can be a provider of electronic communication service); Lopez v. First Union Nat’l Bank, 129 F.3d 1186 (11th Cir. 1997) (bank that provides electronic funds transfers can be a provider of electronic communication service). Cf. United States v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993) (airline that provides travel agents with computerized travel reservation system accessed through separate computer terminals can be a provider of electronic communication service). Conversely, a
service cannot provide ECS with respect to a communication if the service did
not provide the ability to send or receive that communication. See Sega
Enterprises Ltd. v. MAPHIA, 948 F. Supp. 923, 930-31 (N.D. Cal. 1996) (video
game manufacturer that accessed private e-mail stored on another company’s
bulletin board service in order to expose copyright infringement was not a provider
of electronic communication service); State Wide Photocopy v. Tokai Fin.
Servs. Inc, 909 F. Supp. 137, 145 (S.D.N.Y. 1995) (financing company that
used fax machines and computers but did not provide the ability to send or receive
communications was not provider of electronic communication service). 18 U.S.C. § 2510(17) defines “electronic storage” as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” and “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” The mismatch between the common sense meaning of “electronic storage” and its very particular definition has been a source of considerable confusion. It cannot be overemphasized that “electronic storage” refers only to temporary storage, made in the course of transmission, by a provider of electronic communication service. To determine whether a communication is in “electronic storage,” it helps to identify the communication’s final destination. A copy of a communication is in “electronic storage” only if it is a copy of a communication created at an intermediate point that is designed to be sent on to its final destination. For example, e-mail that has been received by a recipient’s service provider but has not yet been accessed by the recipient is in electronic storage. See Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 461 (5th Cir. 1994). At that stage, the copy of the stored communication exists only as a temporary and intermediate measure, pending the recipient’s retrieval of the communication from the service provider. Once the recipient accesses and retrieves the e-mail, however, the communication reaches its final destination. If a recipient then chooses to retain a copy of the accessed communication on the provider’s network, the copy stored on the network is no longer in “electronic storage” because the retained copy is no longer in “temporary, intermediate storage . . . incidental to . . . electronic transmission.” § 2510(17). Because the process of transmission to the intended recipient has been completed, the copy is simply a remotely stored file. See H.R. Rep. No. 99-647, at 64-65 (1986) (noting Congressional intent to treat opened e-mail stored on a server under provisions relating to remote computing services, rather than provisions relating to services holding communications in “electronic storage”). As
a practical matter, whether a communication is held in “electronic storage”
by a provider governs whether that service provides ECS with respect to the communication. The
two concepts are coextensive. Only a provider that holds a communication
in “electronic storage” can provide ECS with respect to that communication. Conversely,
any stored file held by a provider of ECS must be in “electronic storage.” If
a communication is not in “electronic storage,” the service cannot provide
ECS for that communication. Instead, the service must provide either “remote
computing service” (also known as “RCS,”discussed below), or else
neither ECS nor RCS. See discussion infra. The term “remote computing service” (“RCS”) is defined by 18 U.S.C. § 2711(2) as “provision to the public of computer storage or processing services by means of an electronic communications system.” An “electronic communications system” is “any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications.” 18 U.S.C. § 2510(14). Roughly speaking, a remote computing service is provided by an off-site computer that stores or processes data for a customer. See 1986 U.S.C.C.A.N. 3555, 3564-65. For example, a service provider that processes data in a time-sharing arrangement provides an RCS. See H.R. Rep. No. 99-647, at 23 (1986). A mainframe computer that stores data for future retrieval also provides an RCS. See Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432, 443 (W.D. Tex. 1993) (holding that provider of bulletin board services was a remote computing service). In contrast with a provider of ECS, a provider of RCS acts in a two-way capacity with the customer. Files held by a provider of RCS are not on their way to a third intended destination; instead, they are stored or processed by the provider for the convenience of the account holder. Accordingly, files held by a provider acting as an RCS cannot be in “electronic storage” according to § 2510(17). Under the definition provided by § 2711(2), a service can only be a “remote computing service” if it is available “to the public.” Services are available to the public if they may be accessed by any user who complies with the requisite procedures and pays any requisite fees. For example, America Online is a provider to the public: anyone can obtain an AOL account. (It may seem odd at first that a service can charge a fee but still be considered available “to the public,” but this mirrors commercial relationships in the physical world. For example, movie theaters are open “to the public” because anyone can buy a ticket and see a show, even though tickets are not free.) In contrast, providers whose services are open only to those with a special relationship with the provider are not available to the public. For example, employers may offer network accounts only to employees. See Andersen Consulting LLP v. UOP, 991 F. Supp. 1041, 1043 (N.D. Ill. 1998) (interpreting the “providing . . . to the public” clause in § 2702(a) to exclude an internal e-mail system that was provided to a hired contractor but was not available to “any member of the community at large”). Such providers cannot provide remote computing service because their network services are not available to the public.
An example can illustrate how these principles work in practice. Imagine that Joe sends an e-mail from his account at work (“joe@goodcompany.com”) to the personal account of his friend Jane (“jane@localisp.com”). The e-mail will stream across the Internet until it reaches the servers of Jane's Internet service provider, here the fictional LocalISP. When the message first arrives at LocalISP, LocalISP is a provider of ECS with respect to that message. Before Jane accesses LocalISP and retrieves the message, Joe's e-mail is in “electronic storage.” See Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 461 (5th Cir. 1994). Once Jane retrieves Joe's e-mail, she can either delete the message from LocalISP’s server, or else leave the message stored there. If Jane chooses to store the e-mail with LocalISP, LocalISP is now a provider of RCS with respect to the e-mail sent by Joe, not a provider of ECS. The role of LocalISP has changed from a transmitter of Joe’s e-mail to a storage facility for the file on LocalISP’s server. Joe's e-mail is now simply a file stored remotely for Jane by an RCS, in this case LocalISP. See H.R. Rep. No. 99-647, at 64-65 (1986) (noting Congressional intent to treat opened e-mail stored on a server under provisions relating to remote computing services, rather than services holding communications in “electronic storage”). Next imagine that Jane responds to Joe's e-mail. Jane's return e-mail to Joe will stream across the Internet to the servers of Joe's employer, Good Company. Before Joe retrieves the e-mail from Good Company's servers, Good Company is a provider of ECS with respect to Jane's e-mail (just like LocalISP was with respect to Joe's original e-mail before Jane accessed it). When Joe accesses Jane's e-mail message and the communication reaches its destination (Joe), Good Company ceases to be a provider of ECS with respect to that e-mail (just like LocalISP ceased to be a provider of ECS with respect to Joe’s original e-mail when Jane accessed it). Now for a more difficult question: what is the status of Good Company if Joe decides to store the opened e-mail on Good Company's server? The correct answer is that Good Company is now a provider of neither ECS nor RCS. Good Company does not provide RCS because unlike LocalISP, Good Company does not provide services to the public. See 18 U.S.C. § 2711(2) (“[T]he term ‘remote computing service’ means the provision to the public of computer storage or processing services by means of an electronic communications system.”) (emphasis added); Andersen Consulting, 991 F. Supp. at 1043. Because Good Company provides neither ECS nor RCS with respect to the opened return e-mail in Joe's account, ECPA no longer regulates access to this e-mail, and such access is governed solely by the Fourth Amendment. Functionally speaking, Good Company has 'dropped out' of ECPA with respect to the opened return e-mail in Joe's account. Finally, imagine that both Joe and Jane decide to download copies of each other’s e-mails. Jane downloads a copy of Joe’s e-mail from LocalISP’s server to her personal computer at home, and Joe downloads a copy of Jane’s e-mail from Good Company’s server to his office desktop computer at work. At this point, ECPA’s treatment of the copies of the e-mails that remain on the servers is unchanged: LocalISP continues to provide RCS with respect to the copy of Joe’s e-mail stored in Jane’s account on LocalISP’s server, and Good Company still provides neither RCS nor ECS with respect to Jane’s e-mail stored in Joe’s account on Good Company’s server. But what about the copies of the e-mails now stored on Jane’s computer at home and Joe’s desktop computer at work? ECPA governs neither. Although these computers contain copies of e-mails, these copies are not stored on the server of a third-party provider of RCS or ECS, and therefore ECPA does not apply. Access to the copies of the communications stored in Jane’s personal computer at home and Joe’s office computer at work is governed solely by the Fourth Amendment. See generally Chapters 1 and 2. As
this example indicates, a single provider can simultaneously provide RCS with
regards to some communications, ECS with regard to others, and neither ECS nor
RCS with regard to others. As a practical matter, however, agents do not
need to grapple with these difficult issues in most cases. Instead, agents
can simply draft the appropriate order based on the information they seek. For
example, if the police suspect that Jane and Joe have conspired to commit a crime,
the police might seek an order compelling LocalISP to divulge all files in Jane's
account except for those in “electronic storage.” In plain English,
this is equivalent to asking for all of Jane's opened e-mails and stored files. Alternatively,
the police might seek an order compelling Good Company to disclose files in “electronic
storage” in Joe's account. This is equivalent to asking for unopened
e-mails in Joe's account. A helpful chart appears in Part F of this chapter. Sample
language that may be used appears in Appendices B, E, and F. C. Classifying Types of Information Held by Service Providers Network
service providers can store different kinds of information relating to an individual
customer or subscriber. Consider the case of the e-mail exchange between
Joe and Jane discussed above. Jane's service provider, LocalISP, probably
has access to a range of information about Jane and her account. For example,
LocalISP may have opened and unopened e-mails; account logs that reveal when Jane
logged on and off LocalISP; Jane's credit card information for billing purposes;
and Jane's name and address. When agents and prosecutors wish to obtain such
records, they must be able to classify these types of information using the language
of ECPA. ECPA breaks the information down into three categories: basic subscriber
information listed in 18 U.S.C. § 2703(c)(1)(C); “record[s] or other
information pertaining to a subscriber to or customer of [the] service;”
and “contents.” 1. Basic Subscriber Information Listed in 18 U.S.C. § 2703(c)(1)(C) 18 U.S.C. § 2703(c)(1)(C) lists the types of information in the first category:
With
the exception of “name” and “address,” the categories listed
in § 2703(c)(1)(C) can be difficult to translate into the present world of
computer network accounts. The form and substance of the information that
providers retain can change rapidly as technology advances. In general, however,
investigators should resist the temptation to adopt overly broad interpretations
of the ambiguous terms in § 2703(c)(1)(C). With one exception, all of
the items in this list relate solely to the identity of the subscriber and his
relationship with the provider. See Jessup-Morgan v. America Online,
Inc., 20 F. Supp.2d 1105, 1108 (E.D. Mich. 1998) (describing § 2703(c)(1)(C)
information as “information identifying an . . . account customer”). The
exception, telephone toll billing records, appears on the list of basic subscriber
information mostly for historical reasons: the items listed in § 2703(c)(1)(C)
may be obtained with a subpoena, and telephone toll billing records have traditionally
been obtained using a subpoena. See, e.g, United States
v. Cohen, 15 F.R.D. 269, 273 (S.D.N.Y. 1953). While the exact contours
of § 2703(c)(1)(C) will remain ambiguous until the courts begin interpreting
its language, investigators should not use this ambiguity to avoid obtaining
more rigorous court orders required by ECPA to obtain most transactional information.
2. Records or Other Information Pertaining to a Customer or Subscriber 18 U.S.C. § 2703(c)(1)(A)-(B) covers a second type of information: “a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications . . . . ).” This is a catch-all category that includes all records that are not contents, including basic subscriber information. Common
examples of “record[s] . . . pertaining to a subscriber” include transactional
records, such as account logs that record account usage; cell-site data for cellular
telephone calls; and e-mail addresses of other individuals with whom the account
holder has corresponded. See H.R. Rep. No. 103-827, at 10, 17, 31
(1994), reprinted in 1994 U.S.C.C.A.N. 3489, at 3490, 3497, 3511;
United States v. Allen, 53 M.J. 402, 409 (C.A.A.F. 2000) (concluding that
“a log identifying the date, time, user, and detailed internet address of
sites accessed” by a user constituted “a record or other information
pertaining to a subscriber or customer of such service” under ECPA). See
also Hill v. MCI Worldcom, 120 F. Supp.2d 1194, 1196 (S.D. Iowa
2000) (concluding that “invoice/billing information and the names, addresses,
and phone numbers of parties . . . called” constituted “a record or
other information pertaining to a subscriber or customer of such service”
under § 2703(c)(1)(A) for a telephone account). According to the legislative
history that accompanied § 2703(c)(1)(A)-(B), the purpose of separating the
information listed in § 2703(c)(1)(C) from other records described in §
2703(c)(1)(A)-(B) was to distinguish basic subscriber information from more revealing
transactional information that could contain a “person’s entire on-line
profile.” 1994 U.S.C.C.A.N. at 3497, 3511. The contents of a network account are the actual files stored in the account. See 18 U.S.C. § 2510(8) (“‘contents,’ when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication”). For example, stored e-mails are “contents,” as are word processing files stored in employee network accounts. The subject headers of e-mails are also contents, as they often include messages. Cf. Brown v. Waddell, 50 F.3d 285, 292 (4th Cir. 1995) (noting that numerical pager messages provide “an unlimited range of number-coded substantive messages” in the course of holding that the interception of pager messages requires compliance with Title III). Contents
can be further divided into three subcategories: contents stored “in electronic
storage” by providers of electronic communication service; contents stored
by providers of remote computing services; and contents stored by providers who
provide neither electronic communications service nor remote computing service. The
distinctions among these types of content are discussed in Part B, supra.
D. Compelled Disclosure Under ECPA The compelled disclosure provisions of ECPA appear in 18 U.S.C. § 2703. Section 2703 articulates the steps that the government must take to compel providers to disclose the contents of stored electronic communications such as e-mail, as well as other information such as account records and basic subscriber information. (Notably, § 2703 does not regulate the compelled disclosure of stored wire communications, such as stored voicemail. Instead, the compelled disclosure of stored wire communications held by a provider is governed by Title III, 18 U.S.C. §§ 2510-22. The distinction between wire communications and electronic communications, as well as the reason for treating stored wire communications differently than stored electronic communications, is discussed in Chapter 4, Part C, Section 2, infra.) Section 2703 offers five mechanisms that a “government entity” can use to compel a provider to disclose certain kinds of information. Each mechanism requires a different threshold showing. The five mechanisms, ranking in ascending order of the threshold showing required, are as follows:
One
feature of the compelled disclosure provisions of ECPA is that greater process
generally includes access to information that can be obtained with lesser process. Thus,
a § 2703(d) court order can compel everything that a subpoena can compel
(plus additional information), and a search warrant can compel the production
of everything that a § 2703(d) order can compel (and then some). As
a result, agents generally can opt to pursue a higher threshold instead of a lower
one. The additional work required to satisfy a higher threshold will often
be justified, both because it can authorize a broader disclosure and because pursuing
a higher threshold provides extra insurance that the process complies fully with
the statute.
ECPA permits the government to compel two kinds of information using a subpoena. First, the government may compel the disclosure of the basic subscriber information listed in 18 U.S.C. § 2703(c)(1)(C):
See 18 U.S.C. § 2703(c)(1)(C). Agents can also use a subpoena to obtain information that is outside the scope of ECPA. The hypothetical e-mail exchange between Jane and Joe discussed in Part B of this chapter provides a useful example. In that example, Joe retrieved Jane’s e-mail from the server of his employer Good Company, and opted to retain a copy of the communication on Good Company’s server. At that point, Good Company provided neither “remote computing service” nor “electronic communication service” with respect to that communication, because the communication had reached its destination and Good Company did not provide services to the public. See Part B, supra. Accordingly, § 2703 does not impose any requirements on its disclosure, and investigators can issue a subpoena compelling Good Company to divulge the communication just as they would if ECPA did not exist. Similarly, information relating or belonging to a person who is neither a “customer” nor a “subscriber” is not protected by ECPA, and may be obtained using a subpoena according to the same rationale. Cf. Organizacion JD Ltda. v. United States Department of Justice, 124 F.3d 354, 359-61 (2d Cir. 1997) (discussing the scope of the word “customer” as used in ECPA). The
legal threshold for issuing a subpoena is low. See United States
v. Morton Salt Co., 338 U.S. 632, 642-43 (1950). Of course, evidence
obtained in response to a federal grand jury subpoena must be protected from disclosure
pursuant to Fed. R. Crim. P. 6(e). Other types of subpoenas other than federal
grand jury subpoenas may be used to obtain disclosure pursuant to 18 U.S.C. §
2703(c)(1)(C): any federal or state grand jury or trial subpoena will suffice,
as will an administrative subpoena authorized by a federal or state statute. See
18 U.S.C. § 2703(c)(1)(C). For example, subpoenas authorized by § 6(a)(4)
of the Inspector General Act may be used. See 5 U.S.C. app. However,
at least one court has held that a pre-trial discovery subpoena issued in a civil
case pursuant to Fed. R. Civ. P. 45 is inadequate. See FTC v. Netscape
Communications Corp., 196 F.R.D. 559 (N.D. Cal. 2000). Sample subpoena
language appears in Appendix E. 2. Subpoena with Prior Notice to the Subscriber or Customer
Agents who obtain a subpoena, and either give prior notice to the subscriber or else comply with the delayed notice provisions of § 2705, may obtain:
As a practical matter, this means that agents can obtain opened e-mail and other stored electronic communications not in electronic storage 180 days or less using a subpoena, so long as they comply with ECPA's notice provisions. See H.R. Rep. No. 99-647, at 64-65 (1986). In general, the notice provisions can be satisfied by giving the customer or subscriber “prior notice” of the disclosure. See 18 U.S.C. § 2703(b)(1)(B). However, 18 U.S.C. § 2705(a)(1)(B) and § 2705(a)(4) permit notice to be delayed for successive 90-day periods “upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result.” 18 U.S.C. § 2705(a)(1)(B). Both “supervisory official” and “adverse result” are specifically defined terms for the purpose of delaying notice. See § 2705(a)(2) (defining “adverse result”); § 2705(a)(6) (defining “supervisory official”). Although prior notice serves important constitutional values, this provision of ECPA provides a permissible way for agents to delay notice when notice would jeopardize a pending investigation or endanger the life or physical safety of an individual. Cf. United States v. Donovan, 429 U.S. 413, 429 n. 19 (1977) (noting that delayed notice provisions of Title III “satisfy constitutional requirements.”) Upon expiration of the delayed notice period, the statute requires the government to send a copy of the request or process along with a letter explaining the delayed notice to the customer or subscriber. See 18 U.S.C. § 2705(a)(5). ECPA’s
provision allowing for opened e-mail to be obtained using a subpoena combined
with prior notice to the subscriber appears to derive from Supreme Court case
law interpreting the Fourth and Fifth Amendments. See Clifford
S. Fishman & Anne T. McKenna, Wiretapping and Eavesdropping § 26:9,
at 26-12 (2d ed. 1995). When an individual gives paper documents to a third-party
such as an accountant, the government may subpoena the paper documents from the
third party without running afoul of either the Fourth or Fifth Amendment. See
United States v. Couch, 409 U.S. 322 (1973) (rejecting Fourth and Fifth
Amendment challenges to subpoena served on defendant’s accountant for the
accountant’s business records stored with the accountant). In allowing
the government to subpoena opened e-mail, “Congress seems to have concluded
that by ‘renting’ computer storage space with a remote computing service,
a customer places himself in the same situation as one who gives business records
to an accountant or attorney.” Fishman & McKenna, §26:9, at
26-13.
Agents who obtain a court order under 18 U.S.C. § 2703(d) may obtain:
A court order authorized by 18 U.S.C. § 2703(d) may be issued by any federal magistrate, district court or equivalent state court judge. See 18 U.S.C. § 2703(d). To obtain such an order, known as an “articulable facts” court order or simply a “d” order,
This standard does not permit law enforcement merely to certify that it has specific and articulable facts that would satisfy such a showing. Rather, the government must actually offer those facts to the court in the application for the order. See United States v. Kennedy, 81 F. Supp.2d 1103, 1109-11 (D. Kan. 2000) (concluding that a conclusory application for a § 2703(d) order “did not meet the requirements of the statute.”). The House Report that accompanied the passage of § 2703(d) included the following analysis:
H.R. Rep. No. 102-827, at 31 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3511 (quoted in full in Kennedy, 81 F. Supp.2d at 1109 n.8). As a practical matter, a one- to three-page factual summary of the investigation and the role that the records will serve in advancing the investigation usually satisfies this criterion. A more in-depth explanation may be necessary in particularly complex cases. A sample § 2703(d) application and order appears in Appendix B. Section 2703(d) orders
are nationwide in scope, much like subpoenas. ECPA permits judges to enter
§ 2703(d) orders compelling providers to disclose information even if the
judges do not sit in the district in which the information is stored. See
18 U.S.C. § 2703(d) (stating that “any court that is a court of competent
jurisdiction described in [18 U.S.C.] section 3127(2)(A)” may issue a §
2703(d) order) (emphasis added); 18 U.S.C. § 3127(2)(A) (defining “court
of competent jurisdiction” as “a district court of the United States
(including a magistrate of such a court) or a United States Court of Appeals”). In
contrast, the statutes and rules governing search warrants, Title III orders,
and pen/trap orders contain express geographical limitations. See
Fed. R. Crim. P. 41(a) (permitting magistrate judges to issue search warrants
“for a search of property . . . within the district”); 18 U.S.C. §
2518(3) (authorizing judges to enter a Title III order permitting the interception
of communications “within the territorial jurisdiction of the court in which
the judge is sitting”); 18 U.S.C. § 3123(a) (authorizing courts to permit
the installation of pen/trap devices “within the jurisdiction of the court”).
4. § 2703(d) Order with Prior Notice to the Subscriber or Customer
Agents
who obtain a court order under 18 U.S.C. § 2703(d), and either give prior
notice to the subscriber or else comply with the delayed notice provisions of
§ 2705, may obtain:
Although
prior notice serves important constitutional values, agents can obtain an order
delaying notice for up to ninety days when notice would seriously jeopardize the
investigation. See 18 U.S.C. § 2705(a). In such cases, agents
generally will obtain this order by including an appropriate request in the agents’
2703(d) application and proposed order; sample language appears in Appendix
B. Agents may also apply for successive renewals of the delayed notice,
but must apply to the court for extensions. See 18 U.S.C. § 2705(a)(1)(A),
§ 2705(a)(4). The legal standards for obtaining a court order delaying
notice mirror the standards for certified delayed notice by a supervisory official. The
applicant must satisfy the court that “there is reason to believe that notification
of the existence of the court order may . . . endanger[] the life or physical
safety of an individual; [lead to] flight from prosecution; [lead to] destruction
of or tampering with evidence; [lead to] intimidation of potential witnesses;
or . . . otherwise seriously jeopardiz[e] an investigation or unduly delay[] a
trial.” 18 U.S.C. § 2705(a)(1)(A), § 2705(a)(2). Importantly,
the applicant must satisfy this standard anew every time the applicant seeks an
extension of the delayed notice.
Agents who obtain a search warrant under Rule 41 of the Federal Rules of Criminal Procedure or an equivalent state warrant may obtain:
In other words, agents can obtain every record and all of the contents of an account (except for voicemail in “electronic storage,” see Chapter 4, Part C, Section 2, infra.) by obtaining a search warrant based on probable cause pursuant to Fed. R. Crim. P. 41. The search warrant can then be served on the service provider and compels the provider to divulge the information described in the search warrant to law enforcement. Notably, obtaining a search warrant obviates the need to comply with the notice provisions of § 2705. See 18 U.S.C. § 2703(b)(1)(A). Moreover, because the warrant is issued by a neutral magistrate based on probable cause, obtaining a search warrant effectively insulates the process from challenge under the Fourth Amendment. As
a practical matter, § 2703(a) search warrants are obtained just like Rule
41 search warrants, but are usually served like subpoenas. As with a typical
Rule 41 warrant, investigators must draft an affidavit and a proposed warrant
that complies with Rule 41. See 18 U.S.C. § 2703(a). Once
a magistrate judge signs the warrant, however, investigators ordinarily do not
themselves search through the provider’s computers in search of the materials
described in the warrant. Instead, investigators bring the warrant to the
provider, and the provider produces the material described in the warrant. The
voluntary disclosure provisions of ECPA appear in 18 U.S.C. § 2702 and §
2703(c). These statutes govern when a provider of RCS or ECS can disclose
contents and other information voluntarily, both to the government and non-government
entities. If the provider may disclose the information to the government
and is willing to do so voluntarily, law enforcement ordinarily does not need
to obtain a legal order to compel the disclosure. If the provider either
may not or will not disclose the information, agents must comply with the compelled
disclosure provisions and obtain the appropriate legal orders.
When considering whether a provider of RCS or ECS can disclose contents, the first question agents must ask is whether the services offered by the provider are available “to the public.” If the provider does not provide services “to the public,” then ECPA does not place any restrictions on the disclosure of contents. See 18 U.S.C. § 2702(a). For example, in Andersen Consulting v. UOP, 991 F. Supp. 1041 (N.D. Ill. 1998), the petroleum company UOP hired the consulting firm Andersen Consulting and gave Andersen employees accounts on UOP's computer network. After the relationship between UOP and Andersen soured, UOP disclosed to the Wall Street Journal e-mails that Andersen employees had left on the UOP . Andersen sued, claiming that the disclosure of its contents by the provider UOP had violated ECPA. The district court rejected the suit on the ground that UOP did not provide an electronic communications service to the public:
Id. at 1043. Because UOP did not provide services to the public, ECPA did not prohibit disclosure of contents. If the services offered by the provider are
available to the public, then ECPA forbids the disclosure of contents unless:
2. Records Other than Contents
Whether a provider of RCS or ECS can disclose non-content records depends first on who will receive the disclosure. ECPA permits providers to disclose “record[s] or other information pertaining to a subscriber to or customer of such service” voluntarily to anyone outside of the government for any reason. 18 U.S.C. § 2703(c)(1)(A). The rules permitting the disclosure of non-content records to a government entity are considerably more narrow, however. For this reason, agents should be extremely careful when communicating with network service providers in an undercover capacity so as not to violate ECPA. Likewise, when they are not in an undercover capacity, agents should clearly identify themselves as law enforcement agents. On its face, 18 U.S.C. § 2703(c)(1)(B) authorizes the disclosure of “record[s] or other information pertaining to a subscriber to or customer of such service” to a government entity only when the government obtains a warrant or § 2703(d) order, the customer or subscriber consents, or the government submits a formal written request in a telemarketing fraud investigation. 18 U.S.C. § 2703(c)(1)(B). Read broadly, this might appear to prohibit service providers from disclosing account logs and basic subscriber information voluntarily. Such a result would defy common sense in many recurring situations, however. For example, a network provider that is being defrauded by a customer or subscriber often contacts law enforcement seeking to disclose records of the misuse. This is true both for government providers such as NASA and DoD and for private providers such as corporations and universities. A broad reading of 18 U.S.C. § 2703(c)(1)(B)'s prohibition could prohibit these providers from taking the natural step of disclosing records of the abuse when they are victims. Under this reading, the provider would be forced to contact law enforcement, and then law enforcement would have to obtain a § 2703(d) order to “compel” the provider to disclose the records. There are several reasons to believe that courts will not adopt such a broad reading of § 2703(c)(1)(B), and will permit providers to disclose non-content records when necessary to protect the rights and property of the provider. First, courts may rule that the “protection of the rights or property of the provider” exception that expressly permits providers to disclose stored contents and intercept communications in transit impliedly covers the disclosure of less sensitive non-content records. See 18 U.S.C. § 2702(b)(5), § 2511(2)(a)(i). The courts have made similar rulings in the context of Title III and its predecessor statute in order to recognize providers’ “fundamental right to take reasonable measures to protect themselves and their properties against the illegal acts of a trespasser.” Bubis v. United States, 384 F.2d 643, 647-648 (9th Cir. 1967) (rejecting a literal interpretation of 47 U.S.C. § 605, the predecessor to Title III, that would have left communications system providers “powerless to take reasonable measures to protect themselves and their properties against the improper and illegal use of their facilities.”); United States v. Auler, 539 F.2d 642, 646 n.9 (7th Cir. 1976) (stating that when intercepting the contents of a communication is permitted under Title III, then recording mere pen register/ trap and trace information relating to the same communication is “surely permissible”) (citing United States v. Freeman, 524 F.2d 337, 341 (7th Cir.1975)). Provider disclosure of non-content records may also be justified in specific situations. For example, a computer hacker who does not have a legitimate account is not a “customer” or “subscriber” of the provider, so that the provider should be able to disclose records “pertaining to” the intruder's activity without running afoul of ECPA. Cf. Organizacion JD Ltda. v. United States Department of Justice, 124 F.3d 354, 359-61 (2d Cir. 1997) (concluding that a recipient of an electronic funds transfer is not a “customer” of the bank who provided the transfer according to ECPA, where the recipient did not have a legitimate account with the bank). Similarly, the structure of § 2703(c)(1)(A)-(B) suggests that the prohibition on disclosure of non-contents to “a government entity” might not apply to disclosures among government entities. Finally, if the provider does not offer services “to the public,” the provider cannot be a provider of RCS. If the records do not pertain to communications in “electronic storage,” ECPA may not regulate the provider's disclosure of the records. The rules for voluntary disclosure of records to the government will remain hazy until the courts begin interpreting § 2703(c), or until Congress changes the language of the statute. Until that time, agents should be aware that some courts might rule that voluntary disclosure of records to the government will violate ECPA even when there are weighty concerns supporting the disclosure. Of course, agents can avoid this defect by obtaining a § 2703(d) order, search warrant, or the consent of the customer or subscriber.
* See the discussion
in Part E(2) above. G. Working with Network Providers: Preservation of Evidence, Preventing Disclosure to Subjects, and Cable Act Issues
Law enforcement officials who procure records under ECPA quickly learn the importance of communicating with network service providers. This is true because every network provider works differently. Some providers retain very complete records for a long period of time; others retain few records, or even none. Some providers can comply easily with law enforcement requests for information; others struggle to comply with even simple requests. These differences are due to varied philosophies, resources, hardware and software among network service providers. Because of these differences, agents often will want to communicate with network providers to learn how the provider operates before obtaining a legal order that compels the provider to act. ECPA
contains two provisions designed to aid law enforcement officials working with
network service providers. When used properly, these provisions help ensure
that providers will not delete needed records or notify others about the investigation.
1. Preservation of Evidence under 18 U.S.C. § 2703(f)
In general, no law regulates how long network service providers must retain account records in the United States. Some providers retain records for months, others for hours, and others not at all. As a practical matter, this means that evidence may be destroyed or lost before law enforcement can obtain the appropriate legal order compelling disclosure. For example, agents may learn of a child pornography case on Day 1, begin work on a search warrant on Day 2, obtain the warrant on Day 5, and then learn that the network service provider deleted the records in the ordinary course of business on Day 3. To minimize this risk, ECPA permits the government to direct providers to “freeze” stored records and communications pursuant to 18 U.S.C. § 2703(f). Specifically, § 2703(f)(1) states:
Section 2703(f) permits law enforcement agents to contact providers and make a binding request directing the provider to preserve records they have in their possession. While a simple phone call should be adequate, a fax or an e-mail is better because it both provides a paper record and guards against miscommunication. Upon receipt of the government’s request, the provider must retain the records for 90 days, renewable for another 90-day period upon a renewed government request. See 18 U.S.C. § 2703(f)(2). A sample 2703(f) letter appears in Appendix C. Agents who send 2703(f) letters to network service providers should be aware of two limitations. First, the authority to direct providers to preserve records and other evidence is not prospective. That is, § 2703(f) letters can order a provider to preserve records that have already been created, but cannot order providers to preserve records not yet made. Agents cannot use § 2703(f) prospectively as an “end run” around the electronic surveillance statutes. If agents want providers to record information about future electronic communications, they must comply with the electronic surveillance statutes discussed in Chapter 4. A
second limitation of § 2703(f) is that some providers may be unable to comply
effectively with § 2703(f) requests. As of the time of this writing,
for example, the software used by America Online generally requires AOL to reset
the password of an account when it attempts to comply with a § 2703(f) request
to preserve stored e-mail. A reset password may well tip off the suspect. As
a result, agents may or may not want to issue 2703(f) letters to AOL or other
providers who use similar software, depending on the facts. The key here
is effective communication: agents should communicate with the network provider
before ordering the provider to take steps that may have unintended adverse effects. Agents
simply cannot make informed investigative choices without knowing the provider's
particular practices, strengths, and limitations. 2. Orders Not to Disclose the Existence of a Warrant, Subpoena, or Court Order 18 U.S.C. § 2705(b) states:
This language
permits agents to apply for a court order directing network service providers
not to disclose the existence of compelled process whenever the government itself
has no legal duty to notify the customer or subscriber of the process. If
the relevant process is a § 2703(d) order or warrant, agents can simply include
appropriate language in the application and proposed § 2703(d) order or warrant. If
agents instead seek to compel information using a subpoena, they must apply separately
for this order. 3. Possible Conflicts with the Cable Act, 47 U.S.C. § 551 Prosecutors and agents should be aware of the potential conflict between § 2703(c)(1) and the Cable Subscriber Privacy Act (“the Cable Act”), 47 U.S.C. § 551, when seeking records from a network service provider that happens also to be a cable television provider. When Congress passed the Cable Act in 1984 and ECPA in 1986, the two statutory regimes coexisted peacefully. The Cable Act offered privacy rights for cable television subscribers relating to their cable television service, and ECPA offered privacy rights to Internet users relating to their Internet service. Today these two services often converge: many cable providers deliver high-speed Internet access over cable lines. These providers occasionally have expressed the belief that their provision of Internet service is governed by the Cable Act rather than ECPA. See, e.g., In Re Application of the United States for an Order Pursuant to 18 U.S.C. 2703(d), 36 F. Supp.2d 430 (D. Mass. 1999). This can prove troublesome for law enforcement, because the Cable Act permits the government to obtain “personally identifiable information concerning a cable subscriber” only by overcoming a heavy burden of proof at an in-court adversary proceeding. 47 U.S.C. § 551(h). Such an adversary proceeding would not only tip-off the suspect of the investigation, but would require the government to inform the suspect of the evidence the government has linking the suspect to the criminal activity. See id. Needless to say, such a rule would block government investigations in most if not all cases. Properly construed, the Cable Act should not conflict with ECPA because the two statutes regulate different services. The Cable Act regulates the provision of cable television service, see H.R. Rep. 98-934, at 2 (1984), reprintedin 1984 U.S.C.C.A.N. 4655, 4656, and ECPA regulates the provision of Internet service. When a cable company provides Internet service, it should be bound by the rules that apply to the provision of Internet service, not the rules that apply to cable television. Cable providers should not be exempt from ECPA merely because they happen to provide their Internet service over cable lines. A contrary result would permit privacy rights to hinge upon the corporate identity of the provider and the means by which it provided the service. This approach would frustrate the design of both the Cable Act and ECPA to establish uniform national standards for each type of service. Accordingly, 18 U.S.C. § 2703(c) governs compelled access to records belonging to cable Internet providers, rather than 47 U.S.C. § 551(h). Prosecutors
and agents who encounter this issue can contact the Computer Crime and Intellectual
Property Section at (202) 514-1026 or their local CTC for additional advice. ECPA does not provide a suppression remedy. See 18 U.S.C. § 2708 (“The [damages] remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.”). Accordingly, nonconstitutional violations of ECPA do not result in suppression of the evidence. See United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (“[T]he Stored Communications Act expressly rules out exclusion as a remedy”); United States v. Kennedy, 81 F. Supp.2d 1103, 1110 (D. Kan. 2000) (“[S]uppression is not a remedy contemplated under the ECPA.”); United States v. Hambrick, 55 F. Supp.2d 504, 507 (W.D. Va. 1999) (“Congress did not provide for suppression where a party obtains stored data or transactional records in violation of the Act.”), aff’d, 225 F.3d 656, 2000 WL 1062039 (4th Cir. 2000); United States v. Charles, 1998 WL 204696, at *21 (D. Mass. 1998) (“ECPA provides only a civil remedy for a violation of § 2703"); United States v. Reyes, 922 F. Supp. 818, 837-38 (S.D.N.Y. 1996) (“Exclusion of the evidence is not an available remedy for this violation of the ECPA. . . . The remedy for violation of [18 U.S.C. § 2701-11] lies in a civil action.”).13 Defense counsel seeking suppression of evidence obtained in violation of ECPA are likely to rely on McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998). In this unusual case, Judge Sporkin enjoined the United States Navy from dismissing 17-year Navy veteran Timothy R. McVeigh after the Navy learned that McVeigh was gay. The Navy learned of McVeigh's sexual orientation after McVeigh sent an e-mail signed “Tim” from his AOL account “boysrch” to the AOL account of a civilian Navy volunteer. When the volunteer examined AOL's “member profile directory,” she learned that “boysrch” belonged to a man in the military stationed in Honolulu who listed his marital status as “gay.” Suspecting that the message was from McVeigh, the volunteer forwarded the e-mail and directory profile to officers aboard McVeigh's submarine. The officers then began investigating McVeigh's sexual orientation. To confirm McVeigh's identity, a Navy paralegal telephoned AOL and offered a false story for why he needed the real name of “boysrch.” The paralegal did not disclose that he was a Naval serviceman. After the AOL representative confirmed that “boysrch” belonged to McVeigh’s account, the Navy began a discharge proceeding against McVeigh. Shortly before McVeigh's discharge was to occur, McVeigh filed suit and asked for a preliminary injunction blocking the discharge. Judge Sporkin granted McVeigh's motion the day before the discharge. Judge Sporkin's opinion reflects both the case's highly charged political atmosphere and the press of events surrounding the issuance of the opinion.14 In the course of criticizing the Navy for substituting subterfuge for ECPA's legal process to obtain McVeigh's basic subscriber information from AOL, Judge Sporkin made statements that could be interpreted as reading a suppression remedy into ECPA for flagrant violations of the statute:
Id. at 220. While ECPA should be strictly observed, the statement that suppression is appropriate when information is obtained in violation of “an individual's rights” is somewhat perplexing. Both the case law and the text of ECPA itself make clear that ECPA does not offer a suppression remedy for nonconstitutional violations. Accordingly, this statement must be construed to refer only to constitutional rights. Although ECPA does not provide a suppression remedy for statutory violations, it does provide for civil damages (including, in some cases, punitive damages), as well as the prospect of disciplinary actions against officers and employees of the United States who may have engaged in willful violations. 18 U.S.C. § 2707 permits a “person aggrieved” by an ECPA violation to bring a civil action against the “person or entity which engaged in that violation.” 18 U.S.C. § 2707(a). Relief can include money damages no less than $1,000 per person, equitable or declaratory relief, and a reasonable attorney's fee plus other reasonable litigation costs. Willful or intentional violations can also result in punitive damages, see § 2707(b)-(c), and employees of the United States may be subject to disciplinary action for willful or intentional violations. See § 2707(d). A good faith reliance on a court order or warrant, grand jury subpoena, legislative authorization, or statutory authorization provides a complete defense to any ECPA civil or criminal action. See § 2707(e). Qualified immunity may also be available. See Chapter 4, Part D, Sec. 2. At
least one court has held that a government entity cannot be held liable for obtaining
information from a network service provider in violation of 18 U.S.C. § 2703(c). In
Tucker v. Waddell, 83 F.3d 688 (4th Cir. 1996), Durham, North Carolina
police officers obtained a subscriber's account records using an unauthorized
subpoena in violation of § 2703(c)(1)(C). The subscriber sued the City
of Durham and the officers, seeking damages. The Fourth Circuit rejected
the suit, reasoning that § 2703(c) imposed duties on providers of ECS and
RCS, but not government entities seeking information from such providers. See
id. at 691-93. Accordingly, the government could not be sued for violating
§ 2703(c) unless it aided and abetted or conspired in the provider's violation.
See id. at 693, 693 n.6. Notably, however, even the Tucker
court agreed that the government could be held liable for violating § 2703(a)
or § 2703(b). See id. at 693. Computer crime investigations often involve electronic surveillance. Agents may want to monitor a hacker as he breaks into a victim computer system, or set up a “cloned” e-mail box to monitor a suspect sending or receiving child pornography over the Internet. In a more traditional context, agents may wish to wiretap a suspect’s telephone, or learn whom the suspect has called, and when. This chapter explains how the electronic surveillance statutes work in criminal investigations involving computers. Two federal statutes govern real-time electronic surveillance in federal criminal investigations. The first and most important is the wiretap statute, 18 U.S.C. §§ 2510-22, first passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (and generally known as “Title III”). The second statute is the Pen Registers and Trap and Trace Devices chapter of Title 18 (“the Pen/Trap statute”), 18 U.S.C. §§ 3121-27, which governs pen registers and trap and trace devices. Failure to comply with these statutes may result in civil and criminal liability, and in the case of Title III, may also result in suppression of evidence.
Title III and the Pen/Trap statute coexist because they regulate access to different types of information. Title III permits the government to obtain the contents of wire and electronic communications in transmission. In contrast, the Pen/Trap statute concerns the collection of mere addressing information relating to those communications. See United States Telecom Ass’n v. FCC, 227 F.3d 450, 454 (D.C. Cir. 2000); Brown v. Waddell, 50 F.3d 285, 289-93 (4th Cir. 1995) (distinguishing pen registers from Title III intercept devices). The difference between addressing information and content is clear in the case of traditional communications such as telephone calls. The addressing information for a telephone call is the phone number dialed for an outgoing call, and the originating number (the caller ID information) for an incoming call. In contrast, the content of the communication is the actual conversation between the two parties to the call. The distinction between addressing information and content also applies to Internet communications. For example, when computers attached to the Internet communicate with each other, they break down messages into discrete chunks known as “packets,” and then send each packet out to its intended destination. Every packet contains addressing information in the “header” of the packet (much like the “to” and “from” addresses on an envelope), followed by the content of the message (much like a letter inside an envelope). The Pen/Trap statute permits law enforcement to obtain the addressing information of Internet communications much as it would addressing information for traditional phone calls. See 18 U.S.C. § 3127(4) (defining “trap and trace device” broadly as “a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted”). However, reading the entire packet ordinarily implicates Title III. The primary difference between an Internet pen/trap device and an Internet Title III intercept device (sometimes known as a “sniffer”) is that the former is programmed to capture and retain only addressing information, while the latter is programmed to read the entire packet. The same
distinction applies to Internet e-mail. Every Internet e-mail message consists
of a header that contains addressing and routing information generated by the
mail program, followed by the actual contents of the message authored by the sender. The
addressing and routing information includes the e-mail address of the sender and
recipient, as well as information about when and where the message was sent on
its way (roughly analogous to the postmark on a letter). The Pen/Trap statute
permits law enforcement to obtain the addressing information of Internet e-mails
(minus the subject line, which can contain contents, cf. Brown,
50 F.3d at 292) using a court order, just like it permits law enforcement to obtain
addressing information for phone calls and individual Internet “packets”
using a court order. Conversely, the interception of e-mail contents, including
the subject line, requires careful compliance with the strict dictates of Title
III. B. The Pen/Trap Statute, 18 U.S.C. §§ 3121-27 The Pen/Trap statute authorizes a government attorney to apply to a court for an order authorizing the installation of a pen register and/or trap and trace device so long as “the information likely to be obtained is relevant to an ongoing criminal investigation.” 18 U.S.C. § 3122(b)(2). A pen register records outgoing addressing information (such as a number dialed from a monitored telephone), and a trap and trace device records incoming addressing information (such as caller ID information). See 18 U.S.C. § 3127(3)-(4). In Internet cases, however, the historical distinction between pen registers and trap and trace devices carries less importance. Because Internet headers contain both “to” and “from” information, a device that reads the entire header (minus the subject line in the case of e-mail headers) is known simply as a pen/trap device. To obtain an order, applicants must identify themselves, identify the law enforcement agency conducting the investigation, and then certify their belief that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the agency. See 18 U.S.C. § 3122(b)(1)-(2). So long as the application contains these elements, the court will authorize the installation of the pen/trap device. The court will not conduct an “independent judicial inquiry into the veracity of the attested facts.” In re Application of the United States, 846 F. Supp. 1555, 1558-59 (M.D. Fla. 1994). See also United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995) (“The judicial role in approving use of trap and trace devices is ministerial in nature.”). Importantly, this limited judicial review coexists with a strong enforcement mechanism for violations of the statute. As one court has explained,
In re Application of the United States, 846 F. Supp. at 1559. The resulting order may authorize use of a pen/trap device for up to sixty days, and may be extended for additional sixty-day periods. See 18 U.S.C. § 3123(c). The court order also orders the provider not to disclose the existence of the pen/trap “to any . . . person, unless or until otherwise ordered by the court,” 18 U.S.C. § 3123(d)(2), and may order providers of wire or electronic communications service, landlords, or custodians to “furnish . . . forthwith all information, facilities, and technical assistance necessary” to install pen/trap devices. See 18 U.S.C. § 3124(a), (b). Providers who are ordered to assist with the installation of pen/trap devices under § 3124 can receive reasonable compensation for reasonable expenses incurred in providing facilities or technical assistance to law enforcement. See 18 U.S.C. § 3124(c). A provider’s good faith reliance on a court order provides a complete defense to any civil or criminal action arising from its assistance in accordance with the order. See 18 U.S.C. § 3124(d), (e). The
Pen/Trap statute also grants providers of electronic or wire communication service
broad authority to use pen/trap devices on their own networks without a court
order. 18 U.S.C. § 3121(b) states that providers may use pen/trap devices
without a court order
C. The Wiretap
Statute, Title III, 18 U.S.C. §§ 2510-22 1. Introduction: The General Prohibition Since its enactment in 1968 and amendment in 1986, Title III has provided the statutory framework that governs real-time electronic surveillance of the contents of communications. When agents want to wiretap a suspect’s phone, ‘keystroke’ a hacker breaking into a computer system, or accept the fruits of wiretapping by a private citizen who has discovered evidence of a crime, the agents first must consider the implications of Title III. The structure of Title III is surprisingly simple. The statute’s drafters assumed that every private communication could be modeled as a two-way connection between two participating parties, such as a telephone call between A and B. At a fundamental level, the statute prohibits a third party (such as the government) who is not a participating party to the communication from intercepting private communications between the parties using an “electronic, mechanical, or other device,” unless one of several statutory exceptions applies. See 18 U.S.C. § 2511(1). Importantly, this prohibition is quite broad. Unlike some privacy laws that regulate only certain cases or specific places, Title III expansively prohibits eavesdropping (subject to certain exceptions and interstate requirements) essentially everywhere by anyone in the United States. Whether investigators want to conduct surveillance at home, at work, in government offices, in prison, or on the Internet, they must make sure that the monitoring complies with Title III’s prohibitions. The
questions that agents and prosecutors must ask to ensure compliance with Title
III are straightforward, at least in form: 1) Is the communication to
be monitored one of the protected communications defined in 18 U.S.C. § 2510?, 2) Will
the proposed surveillance lead to an “interception” of the communications?,
and 3) If the answer to the first two questions is ‘yes,’ does a statutory
exception apply that permits the interception? Title III
broadly prohibits the “interception” of “oral communications,”
“wire communications,” and “electronic communications.” These
phrases are defined by the statute. See generally 18 U.S.C. §
2510. In computer crime cases, agents and prosecutors planning electronic
surveillance must understand the definition of “wire communication,”
“electronic communication,” and “intercept.” (Surveillance
of oral communications rarely arises in computer crime cases, and will not be
addressed directly here. Agents and prosecutors requiring assistance in cases
involving oral communications should contact the Justice Department's Office of
Enforcement Operations at (202) 514-6809.)
According to § 2510(1), “wire communication” means
Within this complicated definition, the most important requirement is that the content of the communication must include the human voice. See § 2510(18) (defining “aural transfer” as “a transfer containing the human voice at any point between and including the point of origin and point of reception”). If a communication does not contain a genuine human voice, either alone or in a group conversation, then it cannot be a wire communication. See S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555. United States v. Torres, 751 F.2d 875, 885-86 (7th Cir. 1984) (concluding that “silent television surveillance” cannot lead to an interception of wire communications under Title III because no aural acquisition occurs). The additional requirement that wire communications must be sent “in whole or in part . . . by the aid of wire, cable, or other like connection . . .” presents a fairly low hurdle. So long as the signal travels through wire at some point along its route between the point of origin and the point of reception, the requirement is satisfied. For example, all voice telephone transmissions, including those from satellite signals and cellular phones, qualify as wire communications. See H.R. Rep. No. 99-647, at 35 (1986). Because such transmissions are carried by wire within switching stations, they are expressly included in the definition of wire communication. Importantly, the presence of wire inside equipment at the sending or receiving end of a communication (such as an individual cellular phone) does not satisfy the requirement that a communication be sent “in part” by wire. The wire must transmit the communication “to a significant extent” along the path of transmission, outside of the equipment that sends or receives the communication. Id. The final phrase of § 2510(1), relating to wire communications in “electronic storage,” has been a source of considerable confusion. Congress added this phrase to the definition of wire communication to ensure that stored voice mail would in some circumstances be protected by the wiretap laws. See S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555 (explaining that final phrase was designed “to specify that wire communications in storage like voice mail, remain wire communications, and are protected accordingly”). By using the phrase “electronic storage,” however, Congress invoked a term of art that has a particular and limited meaning: a “temporary, intermediate storage . . . incidental to . . . electronic transmission.” § 2510(17) . See generally Chapter 3, Part B (discussing the meaning of “electronic storage” as defined in § 2510(17)). Thus, the final phrase of § 2510(17) appears to add unopened voice mail to the definition of wire communications. The practical effect of this phrase is to require a Title III court order as a condition of government access to voice mail in “electronic storage.” See also Chapter 3, Part D (discussing the treatment of voicemail under ECPA).
18 U.S.C. § 2510(12) defines “electronic communication” as any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include
Section 2510(4) defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” The word “acquisition” is notably ambiguous in this definition. For example, when law enforcement surveillance equipment records the contents of a communication, the communication might be “acquired” at three distinct points: first, when the equipment records the communication; second, when law enforcement later obtains the recording; or third, when law enforcement plays the recording and either hears or sees the contents of the communication. The text of § 2510(4) does not specify which of these events constitutes an “acquisition” for the purposes of ECPA. See United States v. Turk, 526 F.2d 654, 657-58 (5th Cir. 1976). Courts confronted with this ambiguity have rendered inconsistent rulings. Many courts have held that both wire and electronic communications are intercepted only when they are acquired contemporaneously with their transmission. In other words, interception of the communications refers only to their real-time acquisition at the time of transmission between the parties to the communication. Subsequent access to a stored copy of the communication does not “intercept” the communication. See, e.g., Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460-63 (5th Cir. 1994) (access to stored e-mail communications) ; Wesley College v. Pitts, 974 F. Supp. 375, 386 (D. Del. 1997) (same); United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) (access to stored pager communications); United States v. Reyes, 922 F. Supp. 818, 836 (S.D.N.Y. 1996) (same); Bohach v. City of Reno, 932 F. Supp. 1232, 1235-36 (D. Nev. 1996) (same); United States v. Moriarty, 962 F. Supp. 217, 220-21 (D. Mass. 1997) (access to stored wire communications) ; In re State Police Litigation, 888 F. Supp 1235, 1264 (D. Conn. 1995) (same); Payne v. Norwest Corp., 911 F. Supp. 1299, 1303 (D. Mont. 1995), aff’d in part and rev’d in part, 113 F.3d 1079 (9th Cir. 1997) (same). The Ninth Circuit has taken a very different approach. First, in United States v. Smith, 155 F.3d 1051, 1058-59 (9th Cir. 1998), the court held that a party can intercept a wire communication by obtaining a copy of the communication in “electronic storage,” which is specifically defined in § 2510(17). The court reasoned that wire communications should be treated differently than electronic communications because the definition of wire communication expressly included “any electronic storage of such communication,” but the definition of electronic communication did not include this phrase. See id. at 1057. Then, in a pro se civil case, Konop v. Hawaiian Airlines, 2001 WL 13232 , – F.3d. – (9th Cir. 2001), the court reversed course and concluded that it would be “senseless” to treat wire communications and electronic communications differently. Id. at *6-*7. Accordingly, the court held that obtaining a copy of an electronic communication in “electronic storage” can constitute an interception of the communication, just as it can for wire communications. See id. The
most coherent interpretation of “intercept” in the context of wire communications
lies between these two poles. The best evidence suggests that Congress intended
for “intercept” to mean only real-time acquisition. However, in
recognition of the fact that Congress also intended to protect voicemail in “electronic
storage” by including it in the definition of wire communication, see
S. Rep. No. 99-541, at 12 (1986) reprinted in 1986 U.S.C.C.A.N. 3555, agents should
obtain a Title III order to access stored voicemail if the voicemail falls within
the statutory definition of “electronic storage” articulated in §
2510(17). See Chapter 3, Part B. In contrast, the decision in
Konop is plainly incorrect: government access to electronic communications in
“electronic storage” is governed by 18 U.S.C. § 2703, not 18 U.S.C.
§ 2518. Title III broadly prohibits the intentional interception, use, or disclosure15 of wire and electronic communications unless a statutory exception applies. See 18 U.S.C. § 2511(1). In general, this prohibitions bars third parties (including the government) from wiretapping telephones and installing electronic “sniffers” that read Internet traffic. The breadth of Title III's prohibition means that the legality of most surveillance techniques under Title III depends upon whether a statutory exception to the rule applies. Title III contains dozens of exceptions, which may or may not apply in hundreds of different situations. In computer crime cases, however, six exceptions apply most often:
Prosecutors
and agents need to understand the scope of these six exceptions in order to determine
whether different surveillance strategies will comply with Title III. a) Interception Authorized by a Title III Order, 18 U.S.C. § 2518. Title III permits law enforcement to intercept wire and electronic communications pursuant to a 18 U.S.C. § 2518 court order (“Title III order”). High-level Justice Department approval is required for federal Title III applications, by statute in the case of wire communications, and by Justice Department policy in the case of electronic communications (with exceptions to cover numeric pagers). When authorized by the Justice Department and signed by a United States District Court or Court of Appeals judge, a Title III order permits law enforcement to intercept communications for up to thirty days. See § 2518. 18
U.S.C. §§ 2516-18 imposes several formidable requirements that must
be satisfied before investigators can obtain a Title III order. Most
importantly, the application for the order must show probable cause to believe
that the interception will reveal evidence of a predicate felony offense listed
in § 2516. See § 2518(3)(a)-(b). For federal agents,
the predicate felony offense must be one of the crimes specifically enumerated
in § 2516(1)(a)-(p) to intercept wire communications, or any felony to intercept
electronic communications. See 18 U.S.C. § 2516(3). The
predicate crimes for state investigations are listed in 18 U.S.C. § 2516(2). The
application for a Title III order must also show that normal investigative procedures
have been tried and failed, or that they reasonably appear to be unlikely to succeed
or to be too dangerous, see § 2518(1)(c); must establish probable
cause that the communication facility is being used in a crime; and must show
that the surveillance will be conducted in a way that minimizes the interception
of communications that do not provide evidence of a crime. See §
2518(5). For comprehensive guidance on the requirements of 18 U.S.C. §
2518, agents and prosecutors should consult the Justice Department’s Office
of Enforcement Operations at (202) 514-6809. b) Consent of a Party to the Communication, 18 U.S.C. § 2511(2)(c)-(d) 18 U.S.C. § 2511(2)(c) and (d) state:
In computer cases, two questions relating to 18 U.S.C. § 2511(2)(c)-(d) arise particularly often. First, to what extent can a posted notice or a “banner” generate implied consent and permit monitoring? Second, who is a “party to the communication” when a hacker routes an attack across a computer network? i) “Bannering” and Implied Consent
Consent to Title III monitoring may be express or implied. See United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987). Implied consent exists when circumstances indicate that a party to a communication was “in fact aware” of monitoring, and nevertheless proceeded to use the monitored system. United States v. Workman, 80 F.3d 688, 693 (2d Cir. 1996) See also Griggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir. 1990) (“[I]mplied consent is consent in fact which is inferred from surrounding circumstances indicating that the party knowingly agreed to the surveillance.”) (internal quotations omitted). In most cases, the key to establishing implied consent is showing that the consenting party received notice of the monitoring, and used the monitored system despite the notice. See Berry v. Funk, 146 F.3d 1003, 1011 (D.C. Cir. 1998). Proof of notice to the party generally supports the conclusion that the party knew of the monitoring. See Workman, 80 F.3d. at 693. Absent proof of notice, the government must “convincingly” show that the party knew about the interception based on surrounding circumstances in order to support a finding of implied consent. United States v. Lanoue, 71 F.3d 966, 981 (1st Cir. 1995). In computer cases, the implied consent doctrine permits monitoring of a computer network that has been properly “bannered.” A banner is a posted notice informing users as they log on to a network that their use may be monitored, and that subsequent use of the system will constitute consent to the monitoring. Every user who sees the banner before logging on to the network has received notice of the monitoring: by using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). See, e.g., Workman, 80 F.3d. at 693-94 (holding that explicit notices that prison telephones would be monitored generated implied consent to monitoring among inmates who subsequently used the telephones); United States v. Amen, 831 F.2d 373, 379 (2d Cir. 1987) (same). But see United States v. Thomas, 902 F.2d 1238, 1245 (7th Cir. 1990) (dicta) (questioning the reasoning of Amen). The
scope of consent generated by a banner generally depends on the banner’s
language: network banners are not “one size fits all.” A narrowly
worded banner may authorize only some kinds of monitoring; a broadly worded banner
may permit monitoring in many circumstances for many reasons. In deciding
what kind of banner is right for a given computer network, system providers look
at the network’s purpose, the system administrator’s needs, and the
users’ culture. For example, a sensitive Department of Defense computer
network might require a broad banner, while a state university network used by
professors and students could use a narrow one. Appendix A contains several sample banners that reflect a range
of approaches to network monitoring. ii) Who is a “Party to the Communication” in a Network Intrusion? Sections 2511(2)(c) and (d) permit any “person” who is a “party to the communication” to consent to monitoring of that communication. In the case of wire communications, a “party to the communication” is usually easy to identify. For example, either conversant in a two-way telephone conversation is a party to the communication. See, e.g., United States v. Davis, 1 F.3d 1014, 1015 (10th Cir. 1993). In a computer network environment, in contrast, the simple framework of a two-way communication between two parties breaks down. When a hacker launches an attack against a computer network, for example, he may route the attack through a handful of compromised computer systems before directing the attack at a final victim. At the victim’s computer, the hacker may direct the attack at a user’s network account, at the system administrator’s “root” account, or at common files. Finding a “person” who is a “party to the communication” — other than the hacker himself, of course — can be a difficult (if not entirely metaphysical) task. Because
of these difficulties, agents and prosecutors should adopt a cautious approach
to the “party to the communication” consent exception. A few courts
have suggested that the owner of a computer system may satisfy the “party
to the communication” language when a user sends a communication to the owner’s
system. See United States v. Seidlitz, 589 F.2d 152, 158 (4th Cir.
1978) (concluding in dicta that a company that leased and maintained a
compromised computer system was “for all intents and purposes a party to
the communications” when company employees intercepted intrusions into the
system from an unauthorized user using a supervisor’s hijacked account);
United States v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993) (stating
as an alternate holding that the consent exception of § 2511(2)(d) authorizes
monitoring of computer system misuse because the owner of the computer system
is a party to the communication). Even accepting this interpretation, however,
adhering to it may pose serious practical difficulties. Because hackers often
loop from one victim computer through to another, creating a “daisy chain”
of systems carrying the traffic, agents have no way of knowing ahead of time which
computer will be the ultimate destination for any future communication. If
a mere pass-through victim cannot be considered a “party to the communication”
-- an issue unaddressed by the courts -- a hacker's decision to loop from one
victim to another could change who can consent to monitoring. In that case,
agents trying to monitor with the victim's consent would have no way of knowing
whether that victim will be a “party to the communication” for any future
communication. c) The Provider Exception, 18 U.S.C. § 2511(2)(a)(i)
18 U.S.C. § 2511(2)(a)(i) permits
The “protection of the rights or property of the provider” clause of § 2511(2)(a)(i) grants providers the right “to intercept and monitor [communications] placed over their facilities in order to combat fraud and theft of service.” United States v. Villanueva, 32 F. Supp.2d 635, 639 (S.D.N.Y. 1998). For example, employees of a cellular phone company may intercept communications from an illegally “cloned” cell phone in the course of locating its source. See United States v. Pervaz, 118 F.3d 1, 5 (1st Cir. 1997). The exception also permits providers to monitor misuse of a system in order to protect the system from damage, theft, or invasions of privacy. For example, system administrators can track hackers within their networks in order to prevent further damage. Cf. Mullins, 992 F.2d at 1478 (concluding that need to monitor misuse of computer system justified interception of electronic communications according to § 2511(2)(a)(i)). Importantly,
the provider exception of § 2511(2)(a)(i) does not permit providers to conduct
unlimited monitoring. See United States v. Auler, 539 F.2d
642, 646 (7th Cir. 1976) (“This authority of the telephone company to intercept
and disclose wire communications is not unlimited.”). Instead, the exception
permits providers and their agents to conduct reasonable monitoring that balances
the providers’ needs to protect their rights and property with their subscribers’
right to privacy in their communications. See United States v. Harvey,
540 F.2d 1345, 1350 (8th Cir. 1976) (“The federal courts . . . have construed
the statute to impose a standard of reasonableness upon the investigating communication
carrier.”). Providers investigating unauthorized use of their systems
have broad authority to monitor and then disclose evidence of unauthorized use
under § 2511(2)(a)(i), but should attempt to tailor their monitoring and
disclosure so as to minimize the interception and disclosure of private communications
unrelated to the investigation. See, e.g., United States
v. Freeman, 524 F.2d 337, 340 (7th Cir. 1975) (concluding that phone company
investigating use of illegal “blue boxes” designed to steal long-distance
service acted permissibly under § 2511(2)(a)(i) when it intercepted the first
two minutes of every conversation authorized by a “blue box,” but did
not intercept legitimately authorized communications). In particular, there
must be a “substantial nexus” between the monitoring and the threat
to the provider’s rights or property. United States v. McLaren,
957 F. Supp. 215, 219 (M.D. Fla. 1997). Further, although providers legitimately
may protect their rights or property by gathering evidence of wrongdoing for criminal
prosecution, see United States v. Harvey, 540 F.2d 1345, 1352 (8th
Cir. 1976), they cannot use the rights or property exception to gather evidence
of crime unrelated to their rights or property. See Bubis v. United
States, 384 F.2d 643, 648 (9th Cir. 1967) (provider monitoring to convict
blue box user of interstate transmission of wagering information impermissible)
(interpreting Title III’s predecessor statute, 47 U.S.C. § 605). Agents and prosecutors must resist the urge to use the provider exception to satisfy law enforcement needs. Although the exception permits providers to intercept and disclose communications to law enforcement to protect their rights or property, see Harvey, 540 F.2d at 1352, it does not permit law enforcement officers to direct or ask system administrators to monitor for law enforcement purposes. For example, in McClelland v. McGrath, 31 F. Supp.2d 616 (N.D. Ill. 1998), police officers investigating a kidnaping traced the kidnaper's calls to an unauthorized “cloned” cellular phone. Eager to learn more about the kidnaper’s identity and location, the police asked the cellular provider to intercept the kidnaper’s communications and relay any information to the officers that might assist them in locating the kidnaper. The provider agreed, listened to the kidnaper’s calls, and then passed on the information to the police, leading to the kidnaper’s arrest. Later, the kidnaper sued the officers for intercepting his phone calls, and the officers argued that § 2511(2)(a)(i) authorized the interceptions because the provider could monitor the cloned phone to protect its rights against theft. Although the court noted that the suit “might seem the very definition of chutzpah,” it held that § 2511(2)(a)(i) did not authorize the interception to the extent that the police had directed the provider to monitor for law enforcement purposes unrelated to the provider’s rights or property:
Id. at 619. Because the purpose of the monitoring appeared to be to locate and identify the kidnaper (a law enforcement interest), rather than to combat telephone fraud (a provider interest), the court refused to grant summary judgment for the officers on the basis of § 2511(2)(a)(i). See id; see also United States v. Savage, 564 F.2d 728, 731 (5th Cir. 1977) (agreeing with district court ruling that a police officer exceeded the provider exception by commandeering a telephone operator’s monitoring). In light of such difficulties, agents and prosecutors should adopt a cautious approach to accepting the fruits of monitoring conducted by providers under the provider exception. Law enforcement agents generally should feel free to accept the fruits of monitoring that a provider collected pursuant to § 2511(2)(a)(i) prior to communicating with law enforcement about the suspected criminal activity. After law enforcement and the provider have communicated with each other, however, law enforcement should only accept the fruits of a provider’s monitoring if certain requirements have been met that indicate that the provider is monitoring and disclosing to protect its rights or property. In the common case of a computer intrusion into a privately owned computer network, for example, law enforcement generally should accept the fruits of provider monitoring only when: 1) the provider is a victim of the crime and affirmatively wishes both to intercept and to disclose to protect the provider’s rights or property, 2) law enforcement verifies that the provider’s intercepting and disclosure was motivated by the provider’s wish to protect its rights or property, rather than to assist law enforcement, 3) law enforcement has not tasked, directed, requested, or coached the monitoring or disclosure for law enforcement purposes, and 4) law enforcement does not participate in or control the actual monitoring that occurs. Although not required by law, CCIPS strongly recommends that agents should obtain a written document from the private provider indicating the provider’s understanding of its rights and its desire to monitor and disclose to protect its rights or property. Review by a CTC in the relevant district or CCIPS at (202) 514-1026 is also recommended. By following these procedures, agents can greatly reduce the risk that any provider monitoring and disclosure will exceed the acceptable limits of § 2511(2)(a)(i). A sample provider letter appears in Appendix G.
The rationale of the provider exception presupposes that a sharp line exists between providers and law enforcement officers. Under this scheme, providers are concerned with protecting their networks from abuse, and law enforcement officers are concerned with investigating crime and prosecuting wrongdoers. This line can seem to break down, however, when the network to be protected belongs to an agency or branch of the government. For example, federal government entities such as NASA, the Postal Service, and the military services have both massive computer networks and considerable law enforcement presences (within Inspectors General offices in the case of civilian agencies, and military criminal investigative services). Because law enforcement officers and system administrators within the government generally consider themselves to be ‘on the same team,’ it is all too easy in that context for law enforcement agents to feel comfortable commandeering provider monitoring and justifying it under a broad interpretation of the protection of the provider’s “rights or property.” Although the courts have not addressed the viability of this theory of provider monitoring, such an interpretation, at least in its broadest form, may be difficult to reconcile with some of the cases interpreting the provider exception. See, e.g., McLaren, 957 F. Supp. at 219. CCIPS strongly recommends a cautious approach: agents and prosecutors should assume that the courts interpreting § 2511(2)(a)(i) in the government network context will enforce the same strict line between law enforcement and provider interests that they have enforced in the case of private networks. See, e.g., Savage, 564 F.2d at 731; McClelland, 31 F. Supp.2d at 619. Accordingly, CCIPS urges law enforcement agents to exercise a high degree of caution when agents wish to accept the fruits of monitoring under the provider exception from a government provider. Agents and prosecutors should call CCIPS at (202) 514-1026 for additional guidance in specific cases. The
“necessary to the rendition of his service” clause of § 2511(2)(a)(i)
provides the second context in which the provider exception applies. This
language permits providers to intercept, use, or disclose communications in the
ordinary course of business when the interception is unavoidable. SeeUnited
States v. New York Tel. Co., 434 U.S. 159, 168 n.13 (1977) (noting that §
2511(2)(a)(i) “excludes all normal telephone company business practices”
from the prohibition of Title III). For example, a switchboard operator may
briefly overhear conversations when connecting calls. See, e.g.,
United States v. Savage, 564 F.2d 728, 731-32 (5th Cir. 1977); Adams
v. Sumner, 39 F.3d 933, 935 (9th Cir. 1994). Similarly, repairmen may
overhear snippets of conversations when tapping phone lines in the course of repairs.
See United States v. Ross, 713 F.2d 389 (8th Cir. 1983). Although
the “necessary incident to the rendition of his service” language has
not been interpreted in the context of electronic communications, these cases
suggest that this phrase would permit a system administrator to intercept communications
in the course of repairing or maintaining a network.17
d) The Extension Telephone Exception, 18 U.S.C. § 2510(5)(a) According to 18 U.S.C. § 2510(5)(a), the use of
does not violate Title III.18 As originally drafted, Congress intended this exception to have a fairly narrow purpose: the exception primarily was designed to permit businesses to monitor by way of an “extension telephone” the performance of their employees who spoke on the phone to customers. The “extension telephone” exception makes clear that when a phone company furnishes an employer with an extension telephone for a legitimate work-related purpose, the employer’s monitoring of employees using the extension phone for legitimate work-related purposes does not violate Title III. See Briggs v. American Air Filter Co., 630 F.2d 414, 418 (5th Cir. 1980) (reviewing legislative history of Title III); Watkins v. L.M. Berry & Co., 704 F.2d 577, 582 (11th Cir. 1983) (applying exception to permit monitoring of sales representatives); James v. Newspaper Agency Corp. 591 F.2d 579, 581 (10th Cir. 1979) (applying exception to permit monitoring of newspaper employees’ conversations with customers). The case law interpreting the extension telephone exception is notably erratic, largely owing to the ambiguity of the phrase ‘ordinary course of business.’ Some courts have interpreted ‘ordinary course of business’ broadly to mean ‘within the scope of a person’s legitimate concern,’ and have applied the extension telephone exception to contexts such as intra-family disputes. See, e.g., Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir. 1974) (holding that husband did not violate Title III by recording wife’s phone calls); Anonymous v. Anonymous, 558 F.2d 677, 678-79 (2d Cir. 1977) (holding that husband did not violate Title III in recording wife’s conversations with their daughter in his custody). Other courts have rejected this broad reading, and have implicitly or explicitly excluded surreptitious activity from conduct within the ‘ordinary course of business.’ See United States v. Harpel, 493 F.2d 346, 351 (10th Cir. 1974) (“We hold as a matter of law that a telephone extension used without authorization or consent to surreptitiously record a private telephone conversation is not used in the ordinary course of business.”); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir. 1984) (rejecting view that § 2510(5)(a) exempts interspousal wiretapping from Title III liability); United States v. Jones, 542 F.2d 661, 668-670 (6th Cir. 1976) (same). Some of the courts that have embraced the narrower construction of the extension telephone exception have stressed that it permits only limited work-related monitoring by employers. See, e.g., Deal v. Spears, 980 F.2d 1153, 1158 (8th Cir. 1992) (holding that employer monitoring of employee was not authorized by the extension telephone exception in part because the scope of the interception was broader than that normally required in the ordinary course of business). The exception in 18 U.S.C. § 2510(5)(a)(ii) that permits the use of “any telephone or telegraph instrument, equipment or facility, or any component thereof” by “an investigative or law enforcement officer in the ordinary course of his duties” is a common source of confusion. This language does not permit agents to intercept private communications on the theory that a law enforcement agent may need to intercept communications “in the ordinary course of his duties.” As Chief Judge Posner has explained:
Amati
v. City of Woodstock, 176 F.3d 952, 955 (7th Cir. 1999). For example,
routine taping of all telephone calls made to and from a police station may fall
within this exception, but nonroutine taping designed to target a particular suspect
ordinarily would not. See id. Accord United
States v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996) (concluding that routine
recording of calls made from prison fall within law enforcement exception). e) The ‘Inadvertently Obtained Criminal Evidence’ Exception, 18 U.S.C. § 2511(3)(b)(iv) 18
U.S.C. § 2511(3)(b) lists several narrow contexts in which a provider of
electronic communication service to the public can divulge the contents of communications. The
most important of these exceptions permits a public provider to divulge the contents
of any communications that
f) The ‘Accessible to the Public’ Exception, 18 U.S.C. § 2511(2)(g)(i) 18
U.S.C. § 2511(2)(g)(i) permits “any person” to intercept an electronic
communication made through a system “that is configured so that . . . [the]
communication is readily accessible to the general public.” Although
this exception has not yet been applied by the courts in any published cases involving
computers, its language appears to permit the interception of an electronic communication
that has been posted to a public bulletin board or a Usenet newsgroup. D. Remedies For Violations of Title III and the Pen/Trap Statute Agents
and prosecutors must adhere strictly to the dictates of Title III and the Pen/Trap
statute when planning electronic surveillance, as violations can result in civil
penalties, criminal penalties, and suppression of the evidence obtained. See
18 U.S.C. § 2511(4) (criminal penalties for Title III violations); 18 U.S.C.
§ 2520 (civil damages for Title III violation); 18 U.S.C. § 3121(d)
(criminal penalties for pen/trap violations); 18 U.S.C. § 2518(10)(a) (suppression
for Title III violations). As a practical matter, however, courts may conclude
that the electronic surveillance statutes were violated even after agents and
prosecutors have acted in good faith and with full regard for the law. For
example, a private citizen may sometimes wiretap his neighbor and later turn over
the evidence to the police, or agents may intercept communications using a court
order that the agents later learn is defective. Similarly, a court may construe
an ambiguous portion of Title III differently than did the investigators, leading
the court to find that a violation of Title III occurred. In these circumstances,
prosecutors and agents must understand not only what conduct the surveillance
statutes prohibit, but also what the ramifications might be if a court finds that
the statutes have been violated.
a) Statutory Suppression Remedies i) General: Interception of Wire Communications Only The statutes that govern electronic surveillance grant statutory suppression remedies to defendants only in a specific set of cases. In particular, a defendant may only move for suppression on statutory grounds when the defendant was a party to an oral or wire communication that was intercepted in violation of Title III. See 18 U.S.C. § 2518(10)(a). See alsoUnited States v. Giordano, 416 U.S. 505, 524 (1974) (stating that “[w]hat disclosures are forbidden [under § 2515], and are subject to motions to suppress, is . . . governed by § 2518(10)(a)”); United States v. Williams, 124 F.3d 411, 426 (3d Cir. 1997). Section 2518(10)(a) states:
18
U.S.C. § 2518(10)(a). Notably, Title III does not provide a statutory
suppression remedy for unlawful interceptions of electronic communications. See
Steve Jackson Games, Inc v. United States Secret Service, 36 F.3d 457,
461 n.6 (5th Cir. 1994); United States v. Meriwether, 917 F.2d 955, 960
(6th Cir. 1990). Similarly, the Pen/Trap statute does not provide a
statutory suppression remedy for violations. See United States
v. Fregoso, 60 F.3d 1314, 1320-21 (8th Cir. 1995); United States v. Thompson,
936 F.2d 1249, 1249-50 (11th Cir. 1991). ii) Unauthorized Parties The plain language of Title III appears to offer a suppression remedy to any party to an unlawfully intercepted wire communication, regardless of whether the party was authorized or unauthorized to use the communication system. See 18 U.S.C. § 2510(11) (defining an “aggrieved person” who may move to suppress under § 2518(10)(a) as “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed”). Despite this broad definition, it is unclear whether a computer hacker could move for suppression of evidence that recorded the hacker’s unauthorized activity within the victim’s computer network. The one court that has evaluated this question expressed serious doubts. See United States v. Seidlitz, 589 F.2d 152, 160 (4th Cir. 1978) (stating in dicta that “we seriously doubt that [a hacker whose communications were monitored by the system administrator of a victim network] is entitled to raise . . . objections to the evidence [under Title III]”). The Fourth Circuit’s suggestion in Seidlitz is consistent with other decisions interpreting the definition of “aggrieved person” in 18 U.S.C. § 2510(11). Relying on the legislative history of Title III, the Supreme Court has stressed that Title III’s suppression remedy was not intended “generally to press the scope of the suppression role beyond present search and seizure law.” Scott v. United States, 436 U.S. 128, 139 (1978) (quoting S. Rep. No. 90-1097, at 96 (1968), and citing Alderman v. United States, 394 U.S. 165, 175-76 (1969)). If monitoring does not violate a suspect’s reasonable expectation of privacy under the Fourth Amendment, the cases suggest, the suspect cannot be an “aggrieved” person who can move for suppression under Title III. See United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (“[A] defendant may move to suppress the fruits of a wire-tap [under Title III] only if his privacy was actually invaded.”); United States v. Baranek, 903 F.2d 1068, 1072 (6th Cir. 1990) (“[We] do not accept defendant’s contention that fourth amendment law is not involved in the resolution of Title III suppression issues . . . . Where, as here, we have a case with a factual situation clearly not contemplated by the statute, we find it helpful on the suppression issue . . . to look to fourth amendment law.”). Because
monitoring a hacker’s attack ordinarily does not violate the hacker’s
reasonable expectation of privacy, see “Constitutional Suppression
Remedies,” infra, it is unclear whether a hacker can be an “aggrieved
person” entitled to move for suppression of such monitoring under §
2518(10)(a). No court has addressed this question directly. Of course, civil
and criminal penalties for unlawful monitoring continue to exist, even if the
unlawful monitoring itself targets unauthorized use. See, e.g.,
McClelland v. McGrath, 31 F. Supp. 616 (N.D. Ill. 1998) (civil suit brought
by a kidnaper against police officers for unlawful monitoring of the kidnaper’s
unauthorized use of a cloned cellular phone). iii) Suppression Following Interception with a Defective Title III Order Under § 2518(10)(a), the courts generally will suppress evidence resulting from any unlawful interception of an aggrieved party’s wire communication that takes place without a court order. However, when investigators procure a Title III order that later turns out to be defective, the courts will suppress the evidence obtained with the order only if the defective order “fail[ed] to satisfy any of those statutory requirements that directly and substantially implement the congressional intention [in enacting Title III] to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 416 U.S. 505, 527 (1974). This
standard requires the courts to distinguish technical defects from substantive
ones. If the defect in the Title III order concerns only technical aspects
of Title III, the fruits of the interception will not be suppressed. In contrast,
courts will suppress the evidence if the defect reflects a failure to comply with
a significant requirement of Title III. CompareGiordano, 416 U.S.
at 527-28 (holding that failure to receive authorization from Justice Department
official listed in § 2516(1) for order authorizing interception of wire communications
requires suppression in light of importance of such authorization to statutory
scheme) with United States v. Moore, 41 F.3d 370, 375 (8th Cir. 1994) (reversing
district court’s suppression order on ground that judge’s failure to
sign the Title III order in the correct place was merely a technical defect). Defects
that directly implicate constitutional concerns such as probable cause and particularity,
see Berger v. New York, 388 U.S. 41, 58-60 (1967), will generally
be considered substantive defects that require suppression. See United
States v. Ford, 553 F.2d 146, 173 (D.C. Cir. 1977). iv) The “Clean Hands” Exception in the Sixth Circuit 18 U.S.C. § 2518(10)(a)(i) states that an aggrieved person may move to suppress the contents of wire communications when “the communication was unlawfully intercepted.” The plain language of this statute suggests that the government cannot use the fruits of an illegally intercepted wire communication as evidence in court, even if the government itself did not intercept the communication. For example, if a private citizen wiretaps another private citizen and then hands over the results to the government, the general rule is that the government cannot use the evidence in court. See United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987). Despite this general rule, the Sixth Circuit has fashioned a “clean hands” exception that permits the government to use any illegally intercepted communication so long as the government “played no part in the unlawful interception.” United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir. 1995). In Murdock, Mrs. Harold Murdock surreptitiously recorded her estranged husband’s phone conversations at their family-run funeral home. When she later listened to the recordings, she heard evidence that her husband had accepted a $90,000 bribe to award a government contract to a local dairy while serving as president of the Detroit School Board. Mrs. Murdock sent an anonymous copy of the recording to a competing bidder for the contract, who offered the copy to law enforcement. The government then brought tax evasion charges against Mr. Murdock on the theory that Mr. Murdock had not reported the $90,000 bribe as taxable income. Following a trial in which the recording was admitted in evidence against him, the jury convicted Mr. Murdock, and he appealed. The Sixth Circuit affirmed, ruling that although Mrs. Murdock had violated Title III by recording her husband’s phone calls, this violation did not bar the admission of the recordings in a subsequent criminal trial. The court reasoned that Mrs. Murdock’s illegal interception could be analogized to a Fourth Amendment private search, and concluded that Title III did not preclude the government “from using evidence that literally falls into its hands” because it would have no deterrent effect on the government’s conduct. Id. at 1404. Since
the Sixth Circuit decided Murdock, three circuits have rejected the “clean
hands” exception, and instead have embraced the First Circuit’s Vest
rule that the government cannot use the fruits of unlawful interception even if
the government was not involved in the initial interception. See Berry
v. Funk, 146 F.3d 1003, 1013 (D.C. Cir. 1998) (dicta); Chandler v. United
States Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury,
111 F.3d 1066, 1077-78 (3d Cir. 1997). The remaining circuits have not addressed
whether they will recognize a “clean hands” exception to Title III.
b) Constitutional Suppression Remedies Defendants may move to suppress evidence from electronic surveillance of communications networks on either statutory or Fourth Amendment constitutional grounds. Although Fourth Amendment violations generally lead to suppression of evidence, see Mapp v. Ohio, 367 U.S. 643, 655 (1961), defendants move to suppress the fruits of electronic surveillance on constitutional grounds only rarely. This is true for two related reasons. First, Congress’s statutory suppression remedies tend to be as broad or broader in scope than their constitutional counterparts. See, e.g., Chandler, 125 F.3d at 1298; Ford, 553 F.2d at 173. Cf. United States v. Torres, 751 F.2d 875, 884 (7th Cir. 1984) (noting that Title III is a “carefully thought out, and constitutionally valid . . . effort to implement the requirements of the Fourth Amendment.”). Second, electronic surveillance statutes often regulate government access to evidence that is not protected by the Fourth Amendment. See United States v. Hall, 488 F.2d 193, 198 (9th Cir. 1973) (“Every electronic surveillance is not constitutionally proscribed and whether the interception is to be suppressed must turn upon the facts of each case.”). For example, the Supreme Court has held that the use and installation of pen registers does not constitute a Fourth Amendment “search.” See Smith v. Maryland, 442 U.S. 735, 742 (1979). As a result, use of a pen/trap device in violation of the pen/trap statute ordinarily does not lead to suppression of evidence on Fourth Amendment grounds. See United States v. Thompson, 936 F.2d 1249, 1251 (11th Cir. 1991). It is likely
that the scope of Fourth Amendment doctrine would also preclude a hacker from
enjoying a constitutional entitlement to the suppression of unlawful monitoring
of his unauthorized activity. As the Fourth Circuit noted in Seidlitz,
a computer hacker who breaks into a victim computer “intrude[s] or trespasse[s]
upon the physical property of [the victim] as effectively as if he had broken
into the . . . facility and instructed the computers from one of the terminals
directly wired to the machines.” Seidlitz, 589 F.2d at 160. See
also Compuserve, Inc. v. Cyber Promotions, Inc. 962 F. Supp. 1015,
1021 (S.D. Ohio 1997) (noting cases analogizing computer hacking to trespassing). A
trespasser does not have a reasonable expectation of privacy where his presence
is unlawful. See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978)
(noting that “[a] burglar plying his trade in a summer cabin during the off
season may have a thoroughly justified subjective expectation of privacy, but
it is not one which the law recognizes as ‘legitimate’”); Amezquita
v. Colon, 518 F.2d 8, 11 (1st Cir. 1975) (holding that squatters had no reasonable
expectation of privacy on government land where the squatters had no colorable
claim to occupy the land). Accordingly, a computer hacker would have no reasonable
expectation of privacy in his unauthorized activities that were monitored from
within a victim computer. “[H]aving been ‘caught with his hand
in the cookie jar’,” the hacker has no constitutional right to the suppression
of evidence of his unauthorized activities. Seidlitz, 589 F.2d at 160.
2. Defenses to Civil and Criminal Actions
Civil and criminal actions may result when law enforcement officers violate the electronic surveillance statutes. In general, the law permits such actions when law enforcement officers abuse their authority, but protects officers from suit for reasonable good-faith mistakes made in the course of their official duties. The basic approach was articulated over a half century ago by Judge Learned Hand:
Gregoire v. Biddle,
177 F.2d 579, 580 (2d Cir. 1949). When agents and prosecutors are subject
to civil or criminal suits for electronic surveillance, the balance of evils has
been struck by both a statutory good-faith defense and a widely (but not uniformly)
recognized judge-made qualified-immunity defense. Both Title III and the Pen/Trap statute offer a statutory good-faith defense. According to these statutes,
18 U.S.C. § 2520(d) (good-faith defense for Title III violations). See also 18 U.S.C. § 3123(e) (good-faith defense for pen/trap violations). The
relatively few cases interpreting the good-faith defense are notably erratic. In
general, however, the courts have permitted law enforcement officers to rely on
the good-faith defense when they make honest mistakes in the course of their official
duties. See, e.g., Kilgore v. Mitchell, 623 F.2d 631,
663 (9th Cir. 1980) (“Officials charged with violation of Title III may invoke
the defense of good faith under § 2520 if they can demonstrate: (1) that
they had a subjective good faith belief that they were acting in compliance with
the statute; and (2) that this belief was itself reasonable.”); Hallinan
v. Mitchell, 418 F. Supp. 1056, 1057 (N.D. Cal. 1976) (good-faith exception
protects Attorney General from civil suit after Supreme Court rejects Attorney
General's interpretation of Title III). In contrast, the courts have not
permitted private parties to rely on good-faith 'mistake of law' defenses in civil
wiretapping cases. See e.g., Williams v. Poulos, 11
F.3d 271, 285 (1st Cir. 1993); Heggy v. Heggy, 944 F.2d 1537, 1541 (10th
Cir. 1991). The courts have generally recognized a qualified immunity defense to Title III civil suits in addition to the statutory good-faith defense. See Tapley v. Collins, 211 F.3d 1210, 1216 (11th Cir. 2000) (holding that public officials sued under Title III may invoke qualified immunity in addition to the good faith defense); Blake v. Wright, 179 F.3d 1003, 1013 (6th Cir. 1999) (holding that qualified immunity protects police chief from suit by employees who were monitored where “the dearth of law surrounding the . . . statute fails to clearly establish whether [the defendant's] activities violated the law."); Davis v. Zirkelbach, 149 F.3d 614, 618, 620 (7th Cir. 1998) (qualified immunity defense applies to police officers and prosecutors in civil wiretapping case); Zweibon v. Mitchell, 720 F.2d 162 (D.C. Cir. 1983). But see Berry v. Funk, 146 F.3d 1003, 1013-14 (D.C. Cir. 1998) (distinguishing Zweibon, and concluding that qualified immunity does not apply to Title III violations because the statutory good-faith defense exists). Under the doctrine of qualified immunity,
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, qualified immunity protects government officials from suit when “[t]he contours of the right” violated were not so clear that a reasonable official would understand that his conduct violated the law. Anderson v. Creighton, 483 U.S. 635, 640 (1987); Burns v. Reed, 500 U.S. 478, 496 (1991) (prosecutors receive qualified immunity for legal advice to police). Of
course, whether a statutory right under Title III is “clearly established”
is in the eye of the beholder. The sensitive privacy interests implicated
by Title III may lead some courts to rule that a Title III privacy right is “clearly
established” even if no courts have recognized the right in analogous circumstances.
See, e.g., McClelland v. McGrath, 31 F. Supp. 616, 619-20
(N.D. Ill. 1998) (holding that police violated the “clearly established”
rights of a kidnaper who used a cloned cellular phone when the police asked the
cellular provider to intercept the kidnaper’s unauthorized communications
to help locate the kidnaper, and adding that the kidnaper’s right to be free
from monitoring was “crystal clear” despite § 2511(2)(a)(i)). Although the primary concern of this manual is obtaining computer records in criminal investigations, the ultimate goal is to obtain evidence admissible in court. A complete guide to offering computer records in evidence is beyond the scope of this manual. However, this chapter explains some of the more important issues that can arise when the government seeks the admission of computer records under the Federal Rules of Evidence. Most federal
courts that have evaluated the admissibility of computer records have focused
on computer records as potential hearsay. The courts generally have admitted
computer records upon a showing that the records fall within the business records
exception, Fed. R. Evid. 803(6):
However, the federal courts are likely to move away from this “one size fits all” approach as they become more comfortable and familiar with computer records. Like paper records, computer records are not monolithic: the evidentiary issues raised by their admission should depend on what kind of computer records a proponent seeks to have admitted. For example, computer records that contain text often can be divided into two categories: computer-generated records, and records that are merely computer-stored. See People v. Holowko, 486 N.E.2d 877, 878-79 (Ill. 1985). The difference hinges upon whether a person or a machine created the records' contents. Computer-stored records refer to documents that contain the writings of some person or persons and happen to be in electronic form. E-mail messages, word processing files, and Internet chat room messages provide common examples. As with any other testimony or documentary evidence containing human statements, computer-stored records must comply with the hearsay rule. If the records are admitted to prove the truth of the matter they assert, the offeror of the records must show circumstances indicating that the human statements contained in the record are reliable and trustworthy, see Advisory Committee Notes to Proposed Rule 801 (1972), and the records must be authentic. In contrast, computer-generated records contain the output of computer programs, untouched by human hands. Log-in records from Internet service providers, telephone records, and ATM receipts tend to be computer-generated records. Unlike computer-stored records, computer-generated records do not contain human “statements,” but only the output of a computer program designed to process input following a defined algorithm. Of course, a computer program can direct a computer to generate a record that mimics a human statement: an e-mail program can announce “You've got mail!” when mail arrives in an inbox, and an ATM receipt can state that $100 was deposited in an account at 2:25 pm. However, the fact that a computer rather than a human being has created the record alters the evidentiary issues that the computer-generated records present. See, e.g., 2 J. Strong, McCormick on Evidence § 294, at 286 (4th ed. 1992). The evidentiary issue is no longer whether a human's out-of-court statement was truthful and accurate (a question of hearsay), but instead whether the computer program that generated the record was functioning properly (a question of authenticity). See id.; Richard O. Lempert & Steven A. Saltzburg, A Modern Approach to Evidence 370 (2d ed. 1983); Holowko, 486 N.E.2d at 878-79. Finally, a third category of computer records exists: some computer records are both computer-generated and computer-stored. For example, a suspect in a fraud case might use a spreadsheet program to process financial figures relating to the fraudulent scheme. A computer record containing the output of the program would derive from both human statements (the suspect's input to the spreadsheet program) and computer processing (the mathematical operations of the spreadsheet program). Accordingly, the record combines the evidentiary concerns raised by computer-stored and computer-generated records. The party seeking the admission of the record should address both the hearsay issues implicated by the original input and the authenticity issues raised by the computer processing. As
the federal courts develop a more nuanced appreciation of the distinctions to
be made between different kinds of computer records, they are likely to see that
the admission of computer records generally raises two distinct issues. First,
the government must establish the authenticity of all computer records by providing
“evidence sufficient to support a finding that the matter in question is
what its proponent claims.” Fed. R. Evid. 901(a). Second,
if the computer records are computer-stored records that contain human statements,
the government must show that those human statements are not inadmissible hearsay.
Before a party may move for admission of a computer record or any other evidence, the proponent must show that it is authentic. That is, the government must offer evidence “sufficient to support a finding that the [computer record or other evidence] in question is what its proponent claims.” Fed. R. Evid. 901(a). See United States v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998). The standard for authenticating computer records is the same for authenticating other records. The degree of authentication does not vary simply because a record happens to be (or has been at one point) in electronic form. See United States v. DeGeorgia, 420 F.2d 889, 893 n.11 (9th Cir. 1969); United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982). But see United States v. Scholle, 553 F.2d 1109, 1125 (8th Cir. 1977) (stating in dicta that “the complex nature of computer storage calls for a more comprehensive foundation”). For example, witnesses who testify to the authenticity of computer records need not have special qualifications. The witness does not need to have programmed the computer himself, or even need to understand the maintenance and technical operation of the computer. See United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (citing cases). Instead, the witness simply must have first-hand knowledge of the relevant facts to which she testifies. See generally United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (FBI agent who was present when the defendant's computer was seized can authenticate seized files) ; United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985) (telephone company billing supervisor can authenticate phone company records); Moore, 923 F.2d at 915 (head of bank's consumer loan department can authenticate computerized loan data). Challenges
to the authenticity of computer records often take on one of three forms. First,
parties may challenge the authenticity of both computer-generated and computer-stored
records by questioning whether the records were altered, manipulated, or damaged
after they were created. Second, parties may question the authenticity of
computer-generated records by challenging the reliability of the computer program
that generated the records. Third, parties may challenge the authenticity of computer-stored
records by questioning the identity of their author. 1. Authenticity and the Alteration of Computer Records Computer records can be altered easily, and opposing parties often allege that computer records lack authenticity because they have been tampered with or changed after they were created. For example, in United States v. Whitaker, 127 F.3d 595, 602 (7th Cir. 1997), the government retrieved computer files from the computer of a narcotics dealer named Frost. The files from Frost's computer included detailed records of narcotics sales by three aliases: “Me” (Frost himself, presumably), “Gator” (the nickname of Frost's co-defendant Whitaker), and “Cruz” (the nickname of another dealer). After the government permitted Frost to help retrieve the evidence from his computer and declined to establish a formal chain of custody for the computer at trial, Whitaker argued that the files implicating him through his alias were not properly authenticated. Whitaker argued that “with a few rapid keystrokes, Frost could have easily added Whitaker's alias, 'Gator' to the printouts in order to finger Whitaker and to appear more helpful to the government.” Id. at 602. The
courts have responded with considerable skepticism to such unsupported claims
that computer records have been altered. Absent specific evidence that tampering
occurred, the mere possibility of tampering does not affect the authenticity of
a computer record. See Whitaker, 127 F.3d at 602 (declining
to disturb trial judge's ruling that computer records were admissible because
allegation of tampering was “almost wild-eyed speculation . . . [without]
evidence to support such a scenario”); United States v. Bonallo, 858
F.2d 1427, 1436 (9th Cir. 1988) (“The fact that it is possible to alter data
contained in a computer is plainly insufficient to establish untrustworthiness.”);
United States v. Glasser, 773 F.2d 1553 (11th Cir. 1985) (“The existence
of an air-tight security system [to prevent tampering] is not, however, a prerequisite
to the admissibility of computer printouts. If such a prerequisite did exist,
it would become virtually impossible to admit computer-generated records; the
party opposing admission would have to show only that a better security system
was feasible.”). This is consistent with the rule used to establish
the authenticity of other evidence such as narcotics. See United
States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997) (“Merely raising the
possibility of tampering is insufficient to render evidence inadmissible.”). Absent
specific evidence of tampering, allegations that computer records have been altered
go to their weight, not their admissibility. See Bonallo, 858
F.2d at 1436. 2. Establishing the Reliability of Computer Programs The authenticity of computer-generated records sometimes implicates the reliability of the computer programs that create the records. For example, a computer-generated record might not be authentic if the program that creates the record contains serious programming errors. If the program's output is inaccurate, the record may not be “what its proponent claims” according to Fed. R. Evid. 901. Defendants in criminal trials often attempt to challenge the authenticity of computer -generated records by challenging the reliability of the programs. See, e.g., United States v. Dioguardi, 428 F.2d 1033, 1038 (2d Cir. 1970); United States v. Liebert, 519 F.2d 542, 547-48 (3d Cir. 1975). The courts have indicated that the government can overcome this challenge so long as
United States v. Briscoe, 896 F.2d 1476, 1494 (7th Cir. 1990). See also Liebert, 519 F.2d at 547; DeGeorgia, 420 F.2d. at 893 n.11. Compare Fed. R. Evid. 901(b)(9) (indicating that matters created according to a process or system can be authenticated with “[e]vidence describing a process or system used . . . and showing that the process or system produces an accurate result”). In most cases, the reliability of a computer program can be established by showing that users of the program actually do rely on it on a regular basis, such as in the ordinary course of business. See, e.g., United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (“[T]he ordinary business circumstances described suggest trustworthiness, . . . at least where absolutely nothing in the record in any way implies the lack thereof.”) (computerized tax records held by the I.R.S.); Briscoe, 896 F.2d at 1494 (computerized telephone records held by Illinois Bell). When the computer program is not used on a regular basis and the government cannot establish reliability based on reliance in the ordinary course of business, the government may need to disclose “what operations the computer had been instructed to perform [as well as] the precise instruction that had been given” if the opposing party requests. Dioguardi, 428 F.2d at 1038. Notably, once a minimum standard of trustworthiness has been established, questions as to the accuracy of computer records “resulting from . . . the operation of the computer program” affect only the weight of the evidence, not its admissibility. United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988). Prosecutors
may note the conceptual overlap between establishing the authenticity of a computer-generated
record and establishing the trustworthiness of a computer record for the business
record exception to the hearsay rule. In fact, federal courts that evaluate
the authenticity of computer-generated records often assume that the records contain
hearsay, and then apply the business records exception. See, e.g.,
United States v. Linn, 880 F.2d 209, 216 (9th Cir. 1989) (applying business
records exception to telephone records generated “automatically” by
a computer); United States v. Vela, 673 F.2d 86, 89-90 (5th Cir. 1982)
(same). As discussed later in this chapter, this analysis is technically
incorrect in many cases: computer records generated entirely by computers cannot
contain hearsay and cannot qualify for the business records exception because
they do not contain human “statements.” See Part C, infra. As
a practical matter, however, prosecutors who lay a foundation to establish a computer-generated
record as a business record will also lay the foundation to establish the record's
authenticity. Evidence that a computer program is sufficiently trustworthy
so that its results qualify as business records according to Fed. R. Evid. 803(6)
also establishes the authenticity of the record. Compare United States
v. Saputski, 496 F.2d 140, 142 (9th Cir. 1974). 3. Identifying the Author of Computer-Stored Records Although handwritten records may be penned in a distinctive handwriting style, computer-stored records consist of a long string of zeros and ones that do not necessarily identify their author. This is a particular problem with Internet communications, which offer their authors an unusual degree of anonymity. For example, Internet technologies permit users to send effectively anonymous e-mails, and Internet Relay Chat channels permit users to communicate without disclosing their real names. When prosecutors seek the admission of such computer-stored records against a defendant, the defendant may challenge the authenticity of the record by challenging the identity of its author. Circumstantial evidence generally provides the key to establishing the authorship and authenticity of a computer record. For example, in United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998), prosecutors sought to show that the defendant had conversed with an undercover FBI agent in an Internet chat room devoted to child pornography. The government offered a printout of an Internet chat conversation between the agent and an individual identified as “Stavron,” and sought to show that “Stavron” was the defendant. The district court admitted the printout in evidence at trial. On appeal following his conviction, Simpson argued that “because the government could not identify that the statements attributed to [him] were in his handwriting, his writing style, or his voice,” the printout had not been authenticated and should have been excluded. Id. at 1249. The Tenth Circuit
rejected this argument, noting the considerable circumstantial evidence that “Stavron”
was the defendant. See id. at 1250. For example, “Stavron”
had told the undercover agent that his real name was 'B. Simpson,' gave a home
address that matched Simpson's, and appeared to be accessing the Internet from
an account registered to Simpson. Further, the police found records
in Simpson's home that listed the name, address, and phone number that the undercover
agent had sent to “Stavron.” Accordingly, the government had provided
evidence sufficient to support a finding that the defendant was “Stavron,”
and the printout was properly authenticated. See id. at 1250. See
alsoUnited States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000) (concluding
that district court properly admitted chat room log printouts in circumstances
similar to those in Simpson). But see United States v. Jackson,
208 F.3d 633, 638 (7th Cir. 2000) (concluding that web postings purporting to
be statements made by white supremacist groups were properly excluded on authentication
grounds absent evidence that the postings were actually posted by the groups).
Federal
courts have often assumed that all computer records contain hearsay. A more
nuanced view suggests that in fact only a portion of computer records contain
hearsay. When a computer record contains the assertions of a person,
whether or not processed by a computer, and is offered to prove the truth of the
matter asserted, the record can contain hearsay. In such cases, the government
must fit the record within a hearsay exception such as the business records exception,
Fed. R. Evid. 803(6). When a computer record contains only
computer-generated data untouched by human hands, however, the record cannot contain
hearsay. In such cases, the government must establish the authenticity of
the record, but does not need to establish that a hearsay exception applies for
the records to be admissible in court. 1. Inapplicability of the Hearsay Rules to Computer-Generated Records The hearsay rules exist to prevent unreliable out-of-court statements by human declarants from improperly influencing the outcomes of trials. Because people can misinterpret or misrepresent their experiences, the hearsay rules express a strong preference for testing human assertions in court, where the declarant can be placed on the stand and subjected to cross-examination. See Ohio v. Roberts, 448 U.S. 56, 62-66 (1980). This rationale does not apply when an animal or a machine makes an assertion: beeping machines and barking dogs cannot be called to the witness stand for cross-examination at trial. The Federal Rules have adopted this logic. By definition, an assertion cannot contain hearsay if it was not made by a human person. See Fed. R. Evid. 801(a) (“A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”) (emphasis added) ; Fed. R. Evid. 801(b) (“A declarant is a person who makes a statement.”) (emphasis added). As several
courts and commentators have noted, this limitation on the hearsay rules necessarily
means that computer-generated records untouched by human hands cannot contain
hearsay. One state supreme court articulated the distinction in an early
case involving the use of automated telephone records:
The insight that
computer-generated records cannot contain hearsay is important because courts
that assume the existence of hearsay may wrongfully exclude computer-generated
evidence if a hearsay exception does not apply. For example, in United
States v. Blackburn, 992 F.2d 666 (7th Cir. 1993), a bank robber left his
eyeglasses behind in an abandoned stolen car. The prosecution's evidence
against the defendant included a computer printout from a machine that tests the
curvature of eyeglass lenses; the printout revealed that the prescription of the
eyeglasses found in the stolen car exactly matched the defendant's. At trial,
the district court assumed that the computer printout was hearsay, but concluded
that the printout was an admissible business record according to Fed. R. Evid.
803(6). On appeal following conviction, the Seventh Circuit also assumed
that the printout contained hearsay, but agreed with the defendant that the printout
could not be admitted as a business record:
Fortunately,
the Blackburn court ultimately affirmed the conviction, concluding that
the computer printout was sufficiently reliable that it could have been admitted
under the residual hearsay exception, Rule 803(24). See id.
at 672. However, instead of considering a reversal of the conviction because
Rule 803(6) did not apply, the court should have asked whether the computer printout
from the lens-testing machine contained hearsay at all. This question would have
revealed that the computer-generated printout could not be excluded properly on
hearsay grounds because it contained no human “statements.” 2. Applicability of the Hearsay Rules to Computer-Stored Records Computer-stored records that contain human statements must satisfy an exception to the hearsay rule if they are offered for the truth of the manner asserted. Before a court will admit the records, the court must establish that the statements contained in the record were made in circumstances that tend to ensure their trustworthiness. See, e.g., Jackson, 208 F.3d at 637 (concluding that postings from the websites of white supremacist groups contained hearsay, and rejecting the argument that the postings were the business records of the ISPs that hosted the sites). As discussed in the Introduction to this chapter, courts generally permit computer-stored records to be admitted as business records according to Fed. R. Evid. 803(6). Different circuits have articulated slightly different standards for the admissibility of computer-stored business records. Some courts simply apply the direct language of Fed. R. Evid. 803(6), which appears in the beginning of this chapter. See e.g.,United States v. Moore, 923 F.2d 910, 914 (1st Cir. 1991); United States v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988). Other circuits have articulated doctrinal tests specifically for computer records that largely (but not exactly) track the requirements of Rule 803(6). See, e.g., United States v. Cestnik, 36 F.3d 904, 909-10 (10th Cir. 1994) (“Computer business records are admissible if (1) they are kept pursuant to a routine procedure designed to assure their accuracy, (2) they are created for motives that tend to assure accuracy (e.g., not including those prepared for litigation), and (3) they are not themselves mere accumulations of hearsay.”) (quoting Capital Marine Supply v. M/V Roland Thomas II, 719 F.2d 104, 106 (5th Cir. 1983)); United States v. Briscoe, 896 F.2d 1476, 1494 (7th Cir. 1990) (computer-stored records are admissible business records if they “are kept in the course of regularly conducted business activity, and [that it] was the regular practice of that business activity to make records, as shown by the testimony of the custodian or other qualified witness.”) (quoting United States v. Chappell, 698 F.2d 308, 311 (7th Cir. 1983)). Notably, the printout itself may be produced in anticipation of litigation without running afoul of the business records exception. The requirement that the record be kept “in the course of a regularly conducted business activity” refers to the underlying data, not the actual printout of that data. See United States v. Sanders, 749 F.2d 195, 198 (5th Cir. 1984). From a practical perspective, the procedure for admitting a computer-stored record pursuant to the business records exception is the same as admitting any other business record. Consider an e-mail harassment case. To help establish that the defendant was the sender of the harassing messages, the prosecution may seek the introduction of records from the sender’s ISP showing that the defendant was the registered owner of the account from which the e-mails were sent. Ordinarily, this will require testimony from an employee of the ISP (“the custodian or other qualified witness”) that the ISP regularly maintains customer account records for billing and other purposes, and that the records to be offered for admission are such records that were made at or near the time of the events they describe in the regular course of the ISP’s business. Again, the key is establishing that the computer system from which the record was obtained is maintained in the ordinary course of business, and that it is a regular practice of the business to rely upon those records for their accuracy. The
business record exception is the most common hearsay exception applied to computer
records. Of course, other hearsay exceptions may be applicable in appropriate
cases. See, e.g., Hughes v. United States, 953 F.2d 531,
540 (9th Cir. 1992) (concluding that computerized IRS forms are admissible as
public records under Fed. R. Evid. 803(8)). The authentication requirement and the hearsay rule usually provide the most significant hurdles that prosecutors will encounter when seeking the admission of computer records. However, some agents and prosecutors have occasionally considered two additional issues: the application of the best evidence rule to computer records, and whether computer printouts are “summaries” that must comply with Fed. R. Evid. 1006. The best evidence rule states that to prove the content of a writing, recording, or photograph, the “original” writing, recording, or photograph is ordinarily required. See Fed. R. Evid. 1002. Agents and prosecutors occasionally express concern that a mere printout of a computer-stored electronic file may not be an “original” for the purpose of the best evidence rule. After all, the original file is merely a collection of 0's and 1's; in contrast, the printout is the result of manipulating the file through a complicated series of electronic and mechanical processes. Fortunately,
the Federal Rules of Evidence have expressly addressed this concern. The
Federal Rules state that
2. Computer Printouts as “Summaries” Federal Rule of Evidence 1006 permits parties to offer summaries of voluminous evidence in the form of “a chart, summary, or calculation” subject to certain restrictions. Agents and prosecutors occasionally ask whether a computer printout is necessarily a “summary” of evidence that must comply with Fed. R. Evid. 1006. In general, the answer is no. See Sanders, 749 F.2d at 199; Catabran, 836 F.2d at 456-57; United States v. Russo, 480 F.2d 1228, 1240-41 (6th Cir. 1973). Of course, if the computer printout is merely a summary of other admissible evidence, Rule 1006 will apply just as it does to other summaries of evidence. Network banners are electronic messages that provide notice of legal rights to users of computer networks. From a legal standpoint, banners have four primary functions. First, banners may be used to generate consent to real-time monitoring under Title III. Second, banners may be used to generate consent to the retrieval of stored files and records pursuant to ECPA. Third, in the case of government networks, banners may eliminate any Fourth Amendment “reasonable expectation of privacy” that government employees or other users might otherwise retain in their use of the government’s network under O’Connor v. Ortega, 480 U.S. 709 (1987). Fourth, in the case of a non-government network, banners may establish a system administrator’s “common authority” to consent to a law enforcement search pursuant to United States v. Matlock, 415 U.S. 164 (1974). CCIPS
does not take any position on whether providers of network services should use
network banners, and, if so, what types of banners they should use. Further,
there is no formal “magic language” that is necessary. However,
it is important to realize that banners may be worded narrowly or broadly, and
the scope of consent and waiver triggered by a particular banner will in general
depend on the scope of its language. Here is a checklist of issues that may be
considered when drafting a banner:
Application and Order FOR THE _______ DISTRICT OF _________
APPLICATION [Name], an Assistant United States Attorney for the _______ District of ________, hereby files under seal this ex parte application for an order pursuant to 18 U.S.C. Section 2703(d) to require [Internet Service Provider], [mailing address], to provide records and other information pertaining to the [Internet Service Provider] network account that was assigned Internet Protocol address [xxx.xxx.xxx.xxx] on [date] and [time]. The records and other information requested are set forth as Attachment 1 to the Application and to the proposed Order. In support of this Application, the United States offers the following: 1. The United States
Government, including the Federal Bureau of Investigation and the Department of
Justice, is investigating intrusions into a number of computers in the United
States and abroad that occurred on [date], and which may be continuing. These
computer intrusions are being investigated as possible violations of 18 U.S.C.
§ 1030 (damage and unauthorized access to a protected computer) and §
2511 (unlawful interception of electronic communications). Investigation
to date of these incidents provides reasonable grounds to believe that [Internet
Service Provider] has records and other information pertaining to certain of its
subscribers that are relevant and material to an ongoing criminal investigation.
5. 18
U.S.C. § 2703 sets out particular requirements that the government must meet
in order to obtain access to the records and other information in the possession
of providers of “electronic communications services” and/or “remote
computing services.” [Internet Service Provider] functions both as an
electronic communications service provider -- that is, it provides its subscribers
access to electronic communication services, including e-mail and the Internet
-- and as a remote computing service provider -- it provides computer facilities
for the storage and processing of electronic communications -- as those terms
are used in 18 U.S.C. § 2703. [Note that because a “remote computing
service” is public by definition, this statement must be modified if you
are seeking information from a service provider who is not a provider to the public,
such as, for example, a university.] 8. [Add only if the application seeks to obtain the contents of communications (such as e-mails) pursuant to § 2703(b), as opposed to mere records pursuant to § 2703(c).] To obtain the contents of electronic communications held by a remote computing service (but not the contents in “electronic storage,” see n.1), the government must comply with 2703(b)(1)(B), which provides, in pertinent part:
| ||||||||||||||||||||||||||||||||||||