The Fourth Amendment to the U.S. Constitution bans unreasonable "searches" and "seizures." If the Fourth Amendment is to apply, therefore, there must be either a "search" or a "seizure." Today I want to talk about seizures.
In Soldal v. Cook County, 506 U.S. 56 (1992), the Soldals' mobile home was towed away without their permission. They appealed, claiming this was an improper "seizure" of their property, and the U.S. Supreme Court agreed. It noted that a "seizure" of property under the Fourth Amendment "occurs when `there is some meaningful interference with an individual's possessory interests in that property.'" The Court then found that physically tearing the Soldals' mobile home from its foundation and towing it to another lot was a seizure because these actions effectively divested the Soldals of their possessory interest in their mobile home.
Seizures in the real-world, like towing the Soldals' home, are relatively straightforward, as are seizures of computer hardware. If a police officer takes away my laptop computer, that is clearly a seizure under the standard quoted above. As long as the officer has the laptop, I do not.
As this example and the Soldals' sad tale may illustrate, real-world seizures are zero-sum events: The possession (and use) of property passes completely from one person or entity to another. This can be true in the virtual world: Data can be copied and then deleted from a computer or computer system, the effect being that possession of the data passes completely from the original owner to the person who has done the copying and deleting.
Copying data does not, however, have to be a zero-sum event. In State v. Schwartz, 173 Or. App. 301, 21 P.3d 1128 (Or. App. 2001), Randal Schwartz was prosecuted for computer theft based on his having copied a password file belonging to his employer, the Intel Corporation. Schwartz argued, essentially, that the charge was invalid because he had not "stolen" anything. He argued, quite credibly, that theft in the real-world is a zero-sum event, a circumstance that has historically been reflected in theft statutes.
Traditionally, theft has been defined as taking another's property with the intent to deprive the owner of its possession and use; the definition of theft is, therefore, analogous to the definition of Fourth Amendment seizures of property in that it, too, contemplates a zero-sum event. Schwartz argued that his copying the password file did not constitute a zer-sum event, that the state could not show he copied the file with the intent to completely deprive Intel of its possession and use.
But although the Oregon theft statute leaned toward the zero-sum conception of theft, the Oregon Court of Appeals rejected his argument, finding, essentially, that his act of copying the data had deprived Intel of something. The court found, basically, that Schwartz had diluted Intel's ability to preserve the confidentiality of the password data; since passwords have value "only so long as no one else knows what they are", Intel had "lost" something, even though it still had the actuall password data.
This brings me to the point of this post: It not settled whether law enforcement's copying data is a seizure under the Fourth Amendment. In United States v. Gorshkov, 2001 WL 1024026 (W.D. Wash. 2001), the district court summarily rejected the defendant's argument that FBI agents had violated his Fourth Amendment rights when they copied computer data belonging to him without first obtaining a warrant. The court indicated that copying data, which apparently does constitute theft, is not a "seizure" under the Fourth Amendment. This is the only reported case to address the issue.
I vehemently disagree with the Gorshkov court. I think that copying data is a seizure. I think it is a seizure for at least two reasons.
One is that, as the Schwartz case demonstrates, something definitely "happens" when data is copied; there is a transfer of some quantum of the value of the data from the original owner to the person who makes the copy. If copying data constitutes theft, then it should also constitute a seizure under the Fourth Amendment.
The other reason may seem ridiculously pragmatic, but I think it is important: If we do not define copying data as a seizure, then I do not think the process of copying data can be brought within the protections of the Fourth Amendment. (Copying data is not a search under the Fourth Amendment because it is possible to copy data without scrutinizing it; for there to be a search, there has to be some review of the contents of the data.)
If you would like to read more on this, you can consult the debate Orin Kerr and I had on this and other topics last summer.