Computer Searches and Seizures: Some Unresolved Issues

Abstract

The goal of this article is to illustrate the issues that arise in the context of computer search and seizures by examining several areas in which the application of Fourth Amendment concepts to computer searches and/or seizures can be problematic. In order to illustrate this point, the article will build on a hypothetical. The hypothetical situation assumes law enforcement officers have lawfully obtained a warrant to search for and seize evidence concerning the commission of one or more crimes. It will also be assumed that computer technology played some role in the commission of these crimes, so computer equipment and computer data are legitimate objects of the search. This hypothetical is used to explore three issues, each of which concerns the execution of a computer search and seizure warrant: Under what circumstances is it reasonable to conduct a search of computers and/or computer files off-site, as opposed to on-site? What, if any, role should the plain view doctrine play in computer searches and seizures? Is copying data contained on a hard drive or in some other electronic storage media a search? A seizure?

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