General Searches for Electronic Data need to be revised.
A massive amount of personal information is stored on computers and cell phones. Much of it revealing. Whether you carry only a cellphone, or use a computer to access or shop online there is a vast array of personal, private and sensitive data that is stored. Law enforcement can obtain this information and potentially use it against you,
Courts have recognized that it’s time to reevaluate the relationship between this wealth of technology and the individual’s Fourth Amendment protections to ensure a person’s personal privacy survives. Law enforcement officers must first get a warrant before they can search a cellphone, track someone’s physical location, or to obtain information about people from a multitude of service providers. Part of the question would be, is a warrant only required as the first critical step, or is obtaining and examining a phone one of several steps that must be covered under more than one warrant?
The current practices fall short in many ways. The first may be a lack of nexus, meaning that people use electronic devices and online accounts therefore evidence should be found there. Second is overseizure where warrants often seek to obtain ‘all content or data’ contained on the device, regardless of what it is. Third would be the prevention of rummaging searches, which means that once investigators have seized data they can examine the information contained on the device in a discretionary and happenstance manner because relevant evidence could be found anywhere.
Digital and online accounts are extensive. Before computers were common, searches generally involve limitations posed by physical spaces. Searches were limited to spaces large enough to hold the physical items covered by the warrant. Searches for a rifle couldn’t open or seize a jewelry box, nor could they rummage through a desk drawer looking for a flat-screen television. Physical limitations are non-existent in the digital environment. Hard drives, USB drives, CD’s, all contain volumes of data, and personal information including intimate and private documents, love letters, tax records, business plans, health data, religious or political affiliations, personal finances, and more. The government tends to overseize information and then sort through it later. To do this means they are seizing property that they do not have probable cause to collect. This lends to abuse and unconstitutional general invasion of privacy and for investigators to concoct theories of guilt supported by whatever illegal data they have collected. Not only are the rights and privacy of suspects threatened, but digital devices contain information about other people as well as conversations with people totally unrelated to the issue at hand.
Warrants are designed and meant to be specific and not general or exploratory in nature. Probable cause and narrowly tailored. Data seizures must be permitted only where there is a case-specific reason to believe that evidence of the crime under investigation exists among the data to be seized. Investigators, prosecutors and judges need to relearn the term specificity. Contact us at UCMJ Investigations to learn more.