tag:blogger.com,1999:blog-21633793.post1610775183987831177..comments2023-12-12T03:19:42.467-05:00Comments on CYB3RCRIM3: Earthquake: Further ThoughtsSusan Brennerhttp://www.blogger.com/profile/17575138839291052258noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-21633793.post-26509976000087818492009-09-29T16:03:18.709-04:002009-09-29T16:03:18.709-04:00I not a legal type but part of your comment was th...I not a legal type but part of your comment was that the officer was entitled to collect evidence which any person could collect.<br /><br />From the technical side of the house, "plain view" may be something as simple as "I double clicked on it and it opened."Professor Donhttps://www.blogger.com/profile/16267677947700230734noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-3786221081986709652009-09-28T20:30:22.131-04:002009-09-28T20:30:22.131-04:00The problem is that because of the way the "p...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.<br /><br />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.<br /><br />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.JoelKatzhttps://www.blogger.com/profile/09840865938897877532noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-73271279910488625292009-09-28T13:29:44.041-04:002009-09-28T13:29:44.041-04:00Responding to Anonymous:
I agree that referring t...Responding to Anonymous:<br /><br />I agree that referring to the government as having constitutional "rights" sounds peculiar . . . but I wasn't really sure how else to phrase it.<br /><br />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. <br /><br />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.<br /><br />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.<br /><br />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.Susan Brennerhttps://www.blogger.com/profile/17575138839291052258noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-15092940451578519282009-09-28T12:02:42.331-04:002009-09-28T12:02:42.331-04:00On a practical level, cloud computing services are...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. <br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-48032493821754780692009-09-28T11:51:44.139-04:002009-09-28T11:51:44.139-04:00You refer several times in your post to the "...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.<br /><br />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.<br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-66673248776033271872009-09-28T11:17:53.639-04:002009-09-28T11:17:53.639-04:00You're right, and so am I.
The PVD doesn'...You're right, and so am I.<br /><br />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.<br /><br />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.Susan Brennerhttps://www.blogger.com/profile/17575138839291052258noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-9954761451955515382009-09-28T10:33:54.418-04:002009-09-28T10:33:54.418-04:00Isn't it incorrect that the plain view doctrin...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.mknoreply@blogger.com