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The Fourth Amendment and your [client's] electronic devices

I work in two worlds: Physical and electronic. Both require that I remain within ear- and eyeshot of a whirring computer and a cell phone. I invest a lot of time and money protecting the data on these machines. Which leads me to wonder how else they are protected -- by, say, the Fourth Amendment?

What if police were to arrest me at home while I was typing away and talking on the phone -- when could that computer data reasonably be seized? How about the cell phone? These questions of physical versus electronic evidence are central to a draft article linked by The Volokh Conspiracy's Orin Kerr. In "Searches and Seizures in a Digital World," recently accepted for publication by the Harvard Law Review, Kerr advocates for a redefined framework to "protect the function of existing Fourth Amendment rules in the new world of digital evidence." He writes:

"The plain view exception should be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice. "

Kerr hints at some of his thinking in this post, where he draws on his stint at the Justice Department to respond to  CrimProf blogger Jack Chin. When and whether, Chin asks, may police access the contents of a person's cell phone -- as a "container" on his/her person -- at the time of a valid arrest?

"The answer, at least based on existing cases, appears to be yes," Kerr writes, before spelling out the caselaw. Later he adds, "Of course, this doesn't mean that a police officer is free to download a defendant's nude pictures from her cell phone on to his personal PDA at the time of her arrest, which is what allegedly happened in a recent case ..."

More here.

Posted by Product Team on April 4, 2005 at 03:07 PM | Permalink | TrackBack (0)


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