Friday, July 17, 2009

Computer Searches, The Fourth Amendment, and Sarah Palin

While I know this is not directly related to Sixth Circuit actions in cases, I thought it might be of interest to criminal defense practitioners in addressing searches of computers.

I am not sure if this story has made national news, but it is turning into an interesting case down here in Tennessee. Over in Knoxville, David Kernell, the 21 year old son of Memphis democratic state representative Mike Kernell, has been charged with illegally accessing Gov. Sarah Palin's Yahoo email account during last year's presidential campaign. Apparently, he is alleged to have gathered together readily available personal information of Gov. Palin, and guessed at what her password was. According to this article in today's Memphis Commercial Appeal newspaper, his attorneys are seeking to suppress any evidence discovered as a result of the search of Mr. Kernell's computer. According to the news report, "the attorneys contend federal authorities went beyond the authority granted in a search warrant and went instead on an illegal fishing expedition inside the laptop." According to another newspaper account in the Knoxville News-Sentinel, the defendant is also now seeking to subpoena Palin's records regarding her use of the Yahoo account for government purposes and other documents relating to the private nature of her email account, but that is not what is interesting to me. The challenge to the breadth of the government's search of the defendant's computer presents an issue that has yet to be adequately addressed by most courts, and could prove to be fruitful ground for defense practitioners seeking to suppress evidence obtained from a defendant's computer.

What makes these newspaper reports interesting to me, beyond the extraordinary facts, is that it reminded me of an article in last month's cyber-crime issue of Champion magazine from NACDL entitled "Arguing for Suppression of 'Hash' Evidence," by Marcia Hoffman of the Electronic Frontier Foundation. While I doubt that this case depends upon the use of 'hash' evidence given the nature of the evidence being sought, the questions of the breadth and scope of officers' searches of computers, even under a search warrant, is one that will soon have to be addressed by courts. As Hoffman explains: "Because Fourth Amendment jurisprudence has evolved around traditional notions of physical property and common law trespass, its application to new technologies has been an ongoing challenge for the courts. It is well-settled that people generally have a reasonable expectation of privacy in their personal computers, but forensic examinations--a key component of many police investigations--raise some difficult questions."

Along those lines, another article in the Georgia Bar Journal this past February by Edward Garland and Samuel Williams (the attorneys that fashioned the sentencing alternatives for rapper T.I. that recently made news) entitled "The Fourth Amendment and Computers: Are computers just another container or are new rules required to reflect new technologies," addressed the many issues presented by officers broad searches of computers. Garland and Williams argue in their article that "[a]lthough there is considerable debate about whether traditional Fourth Amendment jurisprudence can adequately address any issue that arises in the context of a computer search, or whether an entirely new set of rules is needed, the fact of the matter is that the computer presents new and intriguing problems in the area of the Fourth Amendment, regardless of whether the courts ultimately rely on adapting old rules to solve the problems, or adopting new rules to reflect the technologies." Their article identifies a myriad of issues relating to computer searches and proposes that adapting old rules will be insufficient to address the problems presented by broad computer searches. They contend that the promulgation of new rules will be necessary to prevent the circumvention of the 4th Amendment's privacy protections in persons effects found on hard drives. In addressing the Georgia courts' view of a computer as simply another briefcase, they state, "[t]his simplistic view fails to recognize the scope of the searches that are being undertaken; fails to consider the amount of information found in computers that has nothing to do with legitimate law enforcement concerns and results in the violation of the particularity requirement of the Fourth Amendment and the requirement that searches and seizures be reasonable."

I believe that the Kernell case might present an excellent situation for the Sixth Circuit to address the parameters of the 4th Amendment in the digital age, and the district court's actions in this case bears watching. While Garland and Williams identify other issues presented by computer searches, I believe the particularity requirement of the 4th Amendment is going to be the key to evaluating search warrants seeking to seize computers from a defendant. When you seize most people's computers these days, you aren't just seizing their storage device for evidence of crimes or illicit contraband, but also, their checkbooks, their entertainment systems, their writings, "their papers and effects" if you will. Given the myriad of uses computers are involved in, are warrants that describe the item to be seized simply as a "computer" enough to fulfill the particularity requirement, or will agents need to identify the specific type of file that they are searching for in the computer? If agents go in searching for one thing, but do a little nosing around, and find evidence of another crime, is that 'plain-view'? These are just two of many questions that have yet to be answered regarding computer searches.

Based on an admittedly cursory review of the caselaw this morning, I could find no cases where the Sixth Circuit has directly addressed the particularity requirement in regards to searches of computers. Maybe Mr. Kernell's case will give them the opportunity to do so, judging from the nature of his motion to suppress. Regardless, I believe this is an issue that is going to be addressed by higher courts in the immediate future, and the defense practitioner needs to take a second look at warrants that simply identify a 'computer' as the object of the search.

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