In my last post, I talked about the provision in Rule 41 of the Federal Rules of Criminal Procedure which requires that a search warrant be “executed” within 10 days of being issued. Today I want to talk about a related issue: seeking the return of computer equipment that has been seized pursuant to a search warrant.
The usual dynamic under the Fourth Amendment for computer equipment is that law enforcement officers (a) get a warrant to seize and search computer equipment, (b) seize the equipment, analyze it and find evidence that is used to prosecute the owner for various crimes and (c) the owner moves to suppress that evidence on the grounds that the seizure and/or search of the computer somehow violated the Fourth Amendment. This is the dynamic we’re all used to: the operation of the Fourth Amendment’s exclusionary rule.
There is another, less well-known dynamic, one that arises under Rule 41(g) of the Federal Rules of Criminal Procedure. Rule 41(g) says that someone “aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return.” If the party filing the motion shows good cause for the property’s being returned, the court will enter an order to that effect.
Motions for return of property are filed when the property at issue is, like computer equipment, not itself contraband but has been seized because it contains contraband (child pornography, say) or evidence of a crime (identity theft, extortion, hacking, etc.) The premise behind filing a Rule 41(g) motion in this context is that the computer was seized so the government could search it and find the evidence it contained; it has now been searched, the government has found and acquired the relevant evidence, so the computer should be returned to its owner.
This was the basis of a motion to return filed by a law firm in Massachusetts some years ago. As reported in Commonwealth v. Ellis, 10 Mass. L. Rptr. 429, 1999 WL 815818 (Mass. Super. 1999), law enforcement officers executing a search warrant at the firm’s office seized computers, back-up tapes and a printer to be searched off-site. After some time had passed, the law firm moved for the return of the seized property, arguing that the searches had been completed. The court denied the motion because it found that the government’s retaining the equipment was “reasonable” under the circumstances, the primary circumstance being that it had been (allegedly) used in the commission of crimes.
In People v. Lamonte, 61 Cal. Rptr. 2d 810 (Cal. App. 1997), on the other hand, the appellate court held that the defendant’s motion for the return of his computer should have been granted. This court explained that though the computer “may have” been used in committing a crime, it was not contraband, i.e., it itself was “not illegal to possess.”
These cases illustrate the traditional process of moving for return of seized property – a scenario I will call the “zero-sum seized property scenario.” In this scenario, the government has seized someone’s tangible property and, by retaining it, is completely depriving them of its possession and use. Only the government or the owner can have a computer, not both.
A new scenario – a non-zero sum seized property scenario – has emerged over the last few years. This scenario arises when, as is common, the government makes a copy, a mirror image, of a computer hard drive or other storage media and uses the copy for its analysis. What happens when the owner of the computer hard drive files a motion for the return of the copy of the hard drive?
This happened, for example, in Florida earlier this year. In the Matter of the Application of the United States for a Search Warrant, U.S. District Court – Middle District of Florida (Case No. 05-3113-01). Federal agents executed a search warrant at a business and made mirror images of the data contained in 3 laptop computers, 4 CPUs, two servers and 3 RAID drives. They took the copies away to be analyzed and, after some time had passed, the business moved for the return of all the data on the copies that was not relevant to the criminal investigation.
This is quite common; given the complexity and capacity of computer storage devices, they can contain a great deal of information that is irrelevant to the criminal investigation being conducted. And, as the business pointed out in this case, the irrelevant data is not within the scope of the warrant that justified the making and seizure of the copies; since it is not within the scope of the warrant, it seems its retention by the government would violate the Fourth Amendment.
That is what the business argued in the Florida case. The government’s response was that it should be allowed to retain the mirror images – in their entirety – “indefinitely” so they could be used to “authenticate seized information” and to conduct further searches, if necessary. An expert informed the court that the government should not need to retain the mirror images for authentication purposes, because a hash analysis of the mirror images could be used for that purpose. The government countered that, “for the last several years” it had been the practice among at least some U.S. Attorneys’ offices to retain mirror images of hard drives and other media “throughout the investigation and prosecution of the case.”
The District Court for the Middle District of Florida disagreed. It held that “the United States cannot, consistent with the Fourth Amendment, retain computer storage devices that contain data outside the scope of a search warrant after a search is completed, unless the computer storage devices have themselves been seized as instrumentalities or evidence of a crime or as contraband. . . . The United States should not, therefore, continue to take the cavalier attitude that it may retain computer storage devices throughout an investigation and prosecution without specific court authorization to do so.”
So this court, anyway, said the government cannot retain copied data that is not within the scope of the warrant used to copy computer storage media unless that data is relevant to an investigation. It also indicated that the owner of the seized computer storage media can seek the return of the data before the investigation has been completed, presumably after the government has been given a “reasonable” amount of time to analyze the seized copies.
I tend to agree with this court, but I suspect other courts may disagree. One of the reasons I find this issue of particular interest is because of a proposal I was asked to review last year. The author of this proposal advanced a system for collecting the data on all storage media copied by the government, pursuant to computer search warrants, and depositing it into a central data base. It would then be used for data mining, i.e., to conduct searches intended to identify criminal activity as to which the government was otherwise quite ignorant.
I argued that this was impermissible, that even though the government lawfully copied the data on the seized computer storage media, it cannot use that data for purposes unrelated to the investigation that justified the issue of the warrant authorizing the seizure and copying of the media. It was a rather difficult argument to make, since we have not historically had to deal with this non-zero-sum seized property scenario
traditional justification for seeking the return of tangible property is that you need it – you need to use the seized computer in your business or the seized car in your personal life. When the government takes a copy, this argument becomes more difficult, because they can keep the copy without interfering with your ability to use the computer media from which the data was copied.
I still think I’m right, and hope the proposal I note above does not become a reality.