Monday, September 28, 2009

Earthquake: Further Thoughts

About a month ago, I did a post on the U.S. Court of Appeals for the Ninth Circuit’s decision in the Comprehensive Drug Testing case: U.S. v. Comprehensive Drug Testing, Inc., 2009 WL 2605378 (2009).

In it, I outlined the five principles the Ninth Circuit said should guide federal magistrates when they are asked to issue a warrant to search for, seize and then search computers and digital storage media. I also noted that I wasn’t sure if the court had the authority to enunciate and enforce all of these principles because some, at least, are a pretty radical departure from what courts have been doing in this area.

I want to use this post to elaborate on that topic as it relates to the first of the guiding principles the Comprehensive Drug Testing court set out in its opinion: the requirement that the government waive its right to rely on the plain view doctrine in digital evidence cases. As I explained in an earlier post, the plain view doctrine is an exception to the 4th Amendment’s warrant requirement; more precisely, it’s a rule that can expand the scope of a search that is conducted pursuant to a validly issued search warrant or to a valid exception to the warrant requirement, such as consent or exigent circumstances.

As Wikipedia explains, the plain view doctrine lets an officer seize items he or she sees while at a lawful 4th Amendment vantage point if it is “immediately apparent” to the officer that the items are evidence of a crime. To be at a lawful 4th Amendment vantage point, the officer’s presence at that place must be authorized by a warrant or an exception to the warrant requirement unless, of course, it’s a public place. When an officer is in a public place and observes what he immediately realizes is evidence of a crime (illegal drugs, for example), his observation doesn’t violate the 4th Amendment because he’s doing what anyone else who happened to be there could do.

In the physical world, the plain view doctrine often supplements the scope of a search conducted pursuant to a warrant. Assume, for example, that officers have a warrant to search Joan Doe’s house for stolen weapons. As they search the house, one officer sees a bag of what he clearly recognizes as crack cocaine sitting in plain view on a table; the plain view doctrine lets the officer seize the back of cocaine without his having to get a warrant to do so.

Perhaps you can see why the application of the plain view doctrine is problematic when it comes to digital searches and seizures. Courts have grappled with what it means to say data is in “plain view.” Assume, for example, that an officer searching a hard drive for records of drug dealing discovers child pornography. If the child pornography was in “plain view,” he can seize it and the government can use it to charge the owner of the hard drive with possessing child pornography.

The issue courts have been struggling with is when is data NOT in plain view. If an officer is authorized to search a hard drive for evidence of Crime A, is all of the data on that hard drive in plain view . . . so that if he finds evidence of Crimes B and C the government can use that evidence to prosecute the owner of the hard drive for these crimes? Defendants in various cases have argued that the entire hard drive is not – should not be – in plain view, but haven’t been able to come up with a workable standard for parsing what data is, and what data is not, in plain view when an officer analyzes a hard drive or other storage media.

The Ninth Circuit’s solution is, as I explained in my prior post, to have magistrates require the government to waive its right to rely on the plain view doctrine in order to get a warrant to search a hard drive or other digital storage media. The Ninth Circuit is implicitly saying, “We can’t come up with a way to limit the scope of the plain view doctrine when it comes to digital searches, so the government will have to give up the doctrine if it wants to get a warrant to seize and search computers and other containers of digital evidence.”

While I think we need to limit the scope of the plain view doctrine as it applies to digital searches, I have some reservations about this solution. One – which really doesn’t have much to do with law per se – is that it seems overbroad. I’d be more comfortable with an approach that applies the plain view doctrine to digital searches in a manner analogous to how we apply it to physical searches; that is, I’d prefer to see us come up with some way to define when data is, and is not, in “plain view” from the perspective of a computer forensics examiner. But maybe I’m wrong and the Ninth Circuit is right – maybe there’s simply no way to do that.

My other concern about the solution the Ninth Circuit has come up with is, as I noted earlier, with whether this court – indeed, any U.S. court – has the authority to require the government to waive its constitutional right to rely on the plain view doctrine in order to obtain a digital search warrant. The logical source of that authority – if it exists – is the 4th Amendment because it is the only constitutional provision that restricts what law enforcement officers can do in searching for evidence. In this post I’m going to consider whether the 4th Amendment gives courts the authority to require the government to waive its right to rely on the plain view doctrine. In my next post, I’m going to speculate about another possible source for that authority.

The 4th Amendment provides as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Nothing in the text of the Amendment gives magistrates the right to control how a search warrant is executed. Indeed, the Amendment doesn’t explicitly refer to magistrates; its reference to warrants issuing based on probable cause supported by oath or affirmation implicitly incorporates the role judicial officers, like magistrates, play in implementing the 4th Amendment’s requirements.

The 4th Amendment has two clauses: the “unreasonable searches and seizures” clause and the "warrant-probable cause" clause. The Supreme Court has construed the first clause as creating a general right to be free from unreasonable searches and seizures and the second as specifying the requirements for obtaining a search warrant.

If I were a prosecutor, I’d argue that what the Ninth Circuit did in the Comprehensive Drug Testing case is not justified under either clause. I’d start with the second clause, because it is the one that at least implicitly refers to the role of the magistrate.

I’d point out that the plain language of the second clause clearly establishes that the magistrate’s only role is to ensure that a warrant (search or arrest) is properly issued, i.e., is based on probable cause and particularly describes the place to be searched (the hard drive of Dell computer serial number xxxxxxxxxxxxxx) and the things to be seized (images of child pornography). I’d then argue that because the clause focuses only on the magistrate’s role in ensuring that search warrants are properly issued, it does not give magistrates (or courts) the authority to prescribe what happens after the warrant is issued. In other words, a magistrate can’t tell an officer how he or she should go about executing a search warrant.

Courts do review the propriety of officers’ conduct in executing a valid search warrant. In Marron v. U.S., 275 U.S. 192 (1927), the Supreme Court explained that the 4th Amendment’s “requirement that warrants shall particularly describe the things to be seized . . . prevents the seizure of one thing under a warrant describing another.” This means, as a later Court noted, that the Amendment “confines an officer executing a search warrant strictly within the bounds set by the warrant.” Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (U.S. Supreme Court 1971). The execution of the warrant must therefore stay within the prescribed scope of the warrant . . . which means defendants can move to suppress evidence on the grounds that the officers who executed a warrant went beyond the scope of the warrant, an argument that is often raised in digital searches.

When a defendant makes such an argument, the magistrate (court) will review the officers’ conduct to determine if they stayed within the scope of the warrant. If they did, the magistrate will deny the motion to suppress; if they did not, and if no exception to the warrant requirement applies, the magistrate will grant the motion. Some, then, might argue that because magistrates have the ability to retrospectively review the propriety of officers’ conduct in executing a search warrant they also have the authority to prescribe how the warrant will be executed.

I can see that argument, but I’m not sure that the authority to assess compliance with a search warrant translates into the authority to prescribe how officers are to go about executing a warrant . . . especially when that consists of requiring the government to forfeit its constitutional right to rely on the plain view doctrine.

A number of lower federal courts (e.g., federal district courts and courts of appeal) have noted that “no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision.” U.S. v. Christine, 687 F.3d 749 (U.S. Court of Appeals for the Third Circuit 1982). The Christine court was referring to searches for documents – which often involve officers’ examining all of the documents in order to identity those that are within the scope of their warrant – but subsequent courts have made similar comments about computer searches. See, e.g., U.S. v. Graziano, 558 F. Supp.2d 304 (U.S. District Court for the Eastern District of New York 2008). And the Supreme Court said “it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant”. Dalia v. U.S., 441 U.S. 238 (1979).

A prosecutor, then, could argue that the magistrate’s role is limited to ensuring that the warrant complies with the 4th Amendment when issued and that the execution of the warrant didn’t go beyond the scope of the warrant, taking the circumstances at issue into account. The prosecutor could say the Ninth Circuit’s solution is at once illegal (not authorized by the 4th Amendment) and unnecessary (a court’s after the fact review of the execution of a warrant ensures that the search stayed within the scope of the warrant and therefore complied with the 4th Amendment).

As I think I said, I don’t disagree with what the Ninth Circuit is trying to accomplish. I’m just not sure that the language of the 4th Amendment authorizes them to do this. In my next post, I’ll speculate a bit about whether we can find another source for that authority.


mk said...

Isn't it incorrect that the plain view doctrine expands the scope of a search that is conducted pursuant to a valid search warrant or to a valid exception? Take a valid warrant to search a house for a rifle. That warrant allows a search of a room. The plain view doctrine allows the warrantless seizure of cocaine on a coffee table in that room, but police may not thereafter begin searching anywhere in the house that cocaine could be found. They are still limited in scope by the terms of the warrant, and may only search additional locations a rifle could be found. Absent another warrant, of course.

Susan Brenner said...

You're right, and so am I.

The PVD doesn't extend the scope of a search in the sense that it lets the officers start searching for things that are outside the scope of their warrant. In other words, it doesn't, as a matter of law, extend the scope of the search.

But since the PVD lets the officers executing a warrant seize items (i) they have probable cause to believe are evidence of a crime (ii) but that are outside the scope of the warrant they're executing . . . it extends the scope of the warrant (i.e., what they can seize pursuant to the warrant) in a practical, de facto sense.

Anonymous said...

You refer several times in your post to the "constitutional right" of the government to search for various things. Is that really an accurate (or, if not technically accurate, then useful) way of thinking of the government's power to search? Certainly the 4th amendment doesn't grant the government "rights," but perhaps you're referring to the general constitutional empowerment of the executive to enforce federal law.

This isn't meant as a quibble. It's just that you seem to be framing the issue as a balancing of constitutional "rights," whereas it seems to me to be more a balancing of constitutional rights (belonging to those subject to search) with the default powers of the federal government. And it seems that framing the issue that way, instead of as one of competing "rights," might yield a different result.

As for CDT's effective evisceration of plain view, I agree it seems that the court was essentially saying it's too hard to come up with a general rule of limiting plain view in computer searches, and so Kozinski opted for a "solution" at one, rather extreme, end of the spectrum. A solution that's not very practical.

Anonymous said...

On a practical level, cloud computing services are sold with a promise of security and confidentiality with password protection, etc. Sensitive data is going to be transmitted using a secure protocol, i.e. in encrypted form.

I understand the law puts things in the realm of electronic communication but I think a phone call is the wrong metaphor. A better metaphor is the courier that takes envelopes or folders of your records to the depository at Iron Mountain.

Susan Brenner said...

Responding to Anonymous:

I agree that referring to the government as having constitutional "rights" sounds peculiar . . . but I wasn't really sure how else to phrase it.

And you're correct when you suggest I was referring to the executive branch of the government's power to enforce laws. As I'm sure you know, that power derives from Article II section 3 of the U.S. Constitution, which says that the President "shall take care that the laws be faithfully executed." Courts and commentators agree that this constitutional provision confers the power to enforce laws on the executive branch . . . which, for lack of a better term, means the executive branch has the constitutional "right" to do so.

I could have referred to the executive branch's constitutional authority to enforce the laws, but I really don't see that the use of either term makes any difference: We clearly have a clash between constitutional principles, i.e., between individual rights under the 4th Amendment and the executive branch's obligation to enforce laws.

Another constitutional principle that could be characterized as a "right" also comes into play here: Courts have held that the plain view doctrine lets officers seize items that are in plain view when it is immediately apparent that they are evidence of a crime. That therefore gives law enforcement the "right" to do so. I don't see how a court can strip law enforcement of that right under the 4th Amendment.

Tomorrow I'll do a follow up post in which I come with another way to justify what the Ninth Circuit did in the Comprehensive Drug Testing case.

JoelKatz said...

The problem is that because of the way the "plain view" doctrine is worded, almost every search of digital data would be unreasonable. It is the responsibility of the government to ensure that its searches and seizures are reasonable.

The government is required by the fourth amendment to keep its searches and seizures reasonable. It is settled law that simply sticking to the place to be searched and the items to be searched for is not enough. If it was, a body cavity search of everyone in the location would be permissible in any search for, say, guns or ammunition.

I think the 9th circuit got the wrong solution under current law. But it's a very real problem. The plain view doctrine renders most searches of digital data unreasonable and therefore unlawful.

Professor Don said...

I not a legal type but part of your comment was that the officer was entitled to collect evidence which any person could collect.

From the technical side of the house, "plain view" may be something as simple as "I double clicked on it and it opened."