Sunday, February 19, 2006


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.


Randal L. Schwartz said...

Thanks for continuing to use my case as fodder for conversation. Even a dozen years after the arrest, I'm still affected daily by the consequences of what I had intended as a bonus activity to benefit the company that paid for most of my daily life. It's sad, perhaps tragic, that my activities were misinterpreted, and that I still retain the taint to this day.

Anonymous said...

A more recent case that should be of interest is the Chip Salzenburg case, see

Note that Chip and Randal know each other, as they are both celebrities in the Perl community.

Susan Brenner said...

Thanks to both of you for the comments.

Thanks, especially, for the lead on the Chip Salzenberg case, which I'd missed.

Randal L. Schwartz said...

Chip not only knows me: he also works for me on a contract basis from time to time. And yes, he has spoken to me about his troubles as they were developing, and I've given him advice along the way.

Jonnie Comet said...

I think Gorshkov is completely wrong as is any argument relying on the 'traditional' definition of theft as having the intent to deprive someone of something. Theft can and should be more rationally defined as having the intent to possess something without appropriately obtaining and offering remuneration. This pertains especially to the copying of intellectual property-- art, literature, music, etc., which can be easily copied from one media source to another without offering its legal rights-holder(s) remuneration. This is precisely what happens when the police take a copy of someone's harddrive without a warrant and ostensibly for investigative purposes. Something is definitely 'lost' in the copying-- the exclusive and for-profit nature of the intellectual property being copied.

US Copyright law holds that the rights holder has the right to retain the exclusive right to the intellectual property whose rights he holds. This means the content of, not merely the physical form of, the intellectual ideas being represented. You would not consider it fair if someone were to take a copy of a Nicholas Sparks novel and claim that nothing had been taken, even though it would be clear that the original rights holder (in this case Mr Sparks) was not physically deprived of his book (he could simply go print or buy another). Likewise the taking of a copy of someone's computer represents a theft of all the owner's intellectual property, no matter that his laptop remains intact and in his custody. And when the police can and will be made to return this copy, they must show conclusive evidence that they have removed from their own custody all copies of the copy, so that they in effect retain nothing of what was copied.

The concept of theft as being something more than the plain deprivation of physical possession of a physical item has to be updated for the 21st century.