ThinkTank Forensics

In my last post, I essentially argued that the explicit language of the 4^th Amendment doesn’t give courts the constitutional authority to impose requirements such as requiring the government to forfeit its right to rely on the plain view doctrine.

I focused on the forfeit-the-plain-view-doctrine requirement because I think it’s the hardest to justify of the five requirements the Ninth Circuit Court of Appeals articulated in the Comprehensive Drug Testing opinion.

I think two of the other requirements (search protocols for computer warrants and the segregation of computer data) are difficult to justify for the same reasons that, IMHO, make the plain-view-forfeiture requirement difficult to justify. I think the two remaining requirements (warrant application must disclose actual risks of destruction of evidence and returning non-responsive data) can be justified if not by the plain language of the 4^th Amendment, then by doctrines the U.S. Supreme Court has articulated as it’s parsed the Amendment.

This post isn’t about any of that. It’s about whether we can derive the Ninth Circuit’s constitutional authority to impose the first three requirements (for the purposes of analysis, we’ll assume the last two are fine under existing law) from something other than the plain language of the 4^th Amendment . . . and that brings me to Miranda.

As I assume everyone knows, in Miranda v. Arizona, 384 U.S. 436 (1966) the U.S. Supreme Court held that statements someone makes who is in police custody (i.e., has been arrested or is being detained by officers) are not admissible in court unless he was (i) warned of his “right to silence” and “right to counsel” and (ii) knowingly, intelligently and voluntarily waived both rights and agreed to speak to police. The person must be warned that (i) he has the right to remain silent, (ii) anything he says can and will be used against him, (iii) he has the right to have an attorney present at questioning and (iv) if he can’t afford a lawyer one will be appointed for him.

The Miranda Court said its decision addressed “the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.” Miranda v. Arizona, supra. It did not say that what have come to be known as the Miranda “rights” are part of the 5^th Amendment. Instead, the Court said they were “procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, supra.

In a subsequent decision – U.S. v. Mandujano, 425 U.S. 564 (1976) – the Supreme Court made it very clear that the Miranda “rights” go far beyond what is required by the 5^th Amendment. The Mandujano^th Amendment: Court explicitly held that there is no right to silence under the 5 Instead, the individual must refuse to answer each question as it is asked, and can only refuse to answer if by doing so she would implicate herself (not her mother, not her son) in criminal activity. If the individual answers a question, she waives the 5^th Amendment on that privilege and can be required to answer further questions on that topic. And the Mandujano Court said there is absolutely no right to counsel under the 5^th Amendment. (If you want to know more about the Mandujano Court’s reasoning, you can read the opinion via the link above.)

In other decisions the Supreme Court has repeatedly said the Miranda rules are “not themselves rights protected by the Constitution but [are] instead measures” intended to protect the 5^th Amendment privilege. Michigan v. Tucker, 417 U.S. 433 (1974). In multiple opinions, the Court has described the Miranda rules as “prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause” of the 5^th Amendment. Chavez v. Martinez, 538 U.S. 760 (2003).

This characterization of the Miranda rules is consistent with Justice Warren’s opinion for the Miranda majority. He explains, in great detail, that the Court is compelled to create this new set of standards for interrogations because a new “evil” has arisen, one that cannot be adequately addressed by the sole standard that then existed – a due process standard that banned the use of physical abuse during interrogations.

Warren explains, again in great detail, that the old rule is inadequate because police have shifted to using psychological coercion in interrogations; he uses empirical sources to explain the techniques police are using and buttress his argument that the use of these techniques undermines individuals’ ability to invoke their 5^th Amendment privilege. Warren says the Court is creating the Miranda rules as a device – a set of tools people can use to resist the pressure of psychologically-based interrogation. He says the rules are necessary to protect the 5^th Amendment and in doing so implicitly suggests that the 5^th Amendment gives the Court the power to adopt and enforce the Miranda rules. He never actually explains what the connection between the two is.

That opened the door for a constitutional challenge to Miranda. In 1999, in U.S. v. Dickerson, the U.S. Court of Appeals for the 4^th Circuit held that the Miranda rights are not constitutional. The case went to the Supreme Court and in 2000 a majority of the Court held that the Miranda rules are “constitutionally based” . . . so Miranda survives.

And that brings me back to the Ninth Circuit’s recent decision in the Comprehensive Drug Testing case. In my last post I explained why I doubt that the Ninth Circuit has the constitutional authority to impose certain of the requirements noted above. I explained that the plain language of the 4^th Amendment doesn’t seem to confer such authority on the Ninth Circuit or any other U.S. court.

I could be wrong about that, but let’s assume I’m not. If the plain language of the 4^th Amendment doesn’t support the approach the Ninth Circuit outlined in Comprehensive Drug Testing, then that approach is either unconstitutional or its constitutionality has to be justified on some other basis.

As I thought about that, it occurred to me that there are certain parallels between the Comprehensive Drug Testing court and the Miranda Court: Both were addressing what they considered to be new and highly problematic challenges to the implementation of one of the guarantees of the Bill of Rights. For the Miranda Court, the challenge was psychologically-based interrogation; for the Comprehensive Drug Testing court, it was the empirical complications digital technology introduce into the processes of searching for and seizing evidence.

As I explained in my original post on the Comprehensive Drug Testing case, that court explained that simply applying conventional search and seizure procedures to digital evidence “creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” U.S. v. Comprehensive Drug Testing, Inc., 2009 WL 2605378 (U.S. Court of Appeals for the Ninth Circuit 2009).

I actually agree with everything the Ninth Circuit said about the complications digital evidence creates for 4^th Amendment analysis and about why we cannot simply continue to apply the rules that govern physical searches and seizures to digital searches and seizures. As I’ve noted before, my concern lay not with the premise of the opinion but with the court’s authority to implement the solution it adopted (or at least aspects of the solution it adopted).

If I had to justify the Ninth Circuit’s implementing this solution, I might derive its authority to do so from a Miranda-style argument. That is, I might argue that the Ninth Circuit, like the Miranda Court, confronted an empirical environment that had changed in ways that made the application of traditional constitutional principles increasingly problematic. I would then need to develop a theory that explains why the Supreme Court has the constitutional authority to promulgate and enforce prophylactic rules that go far beyond what the 5^th Amendment requires with regard to interrogations; it’s certainly possible to do that. Law professors came up with such theories while Dickerson was pending in the Supreme Court (which, of course, ignored all of them).

I would then demonstrate why that theory is equally applicable for other constitutional guarantees, such as the 4^th Amendment. I would have to show that the constitutional authority to promulgate and enforce prophylactic rules that exceed basic constitutional requirements is not unique to the 5^th Amendment . . . which I suspect wouldn’t be that difficult. Logically, if the Supreme Court can promulgate and enforce prophylactic rules to protect the core values secured by one of the provisions of the Bill of Rights, it seems to follow that the Supreme Court (and, by extension, lower courts) can do the same thing to protect the values secured by another provision of the Bill of Rights.

I have neither the space nor the ambition to try to develop any of that in detail here . . . and I suspect you’d just as soon not have to read all of that. I’m sure these arguments can be made, probably without much difficulty. All that would be involved is deriving the courts’ authority to promulgate these prophylactic rules and extrapolating that authority to the 4^th Amendment context.

Extrapolating that authority to the 4^th Amendment context would involve doing two things: One is demonstrating that the need and justification for prophylactic rules isn’t limited to the interrogation context; prosecutors might argue that the Miranda Court was dealing with a problem that was uniquely compelling because, say, interrogation truly pits the individual against the power of the state. I’d have to rebut that argument by showing that the justification is broader and applies with equal force to the 4^th Amendment’s concern with protecting individual privacy. (I could say that here we also have a confrontation between the individual and the state the outcome of which jeopardizes the individual’s rights to privacy and liberty.)

The other thing I’d have to do to extrapolate that authority to the 4^th Amendment context is to show that digital evidence creates the potential for an “evil” comparable in severity to the “evil” the Miranda Court saw in psychologically-based interrogation. Prosecutors would probably argue that extant 4^th Amendment principles are perfectly adequate to protect individual privacy even in the context of digital evidence searches. I’d have to be able to show why that isn’t true which, again, I don’t think would be that difficult. I could start with some of the things the Ninth Circuit said in the Comprehensive Drug Testing case and go on from there.

I’m not saying I could put together a perfect argument or even one that would win. I am saying that I think what the Supreme Court did in Miranda creates the opportunity for an argument along the lines of the one I’ve outlined here.

A while back, I did a post on privacy and cloud computing. In it, I focused on the extent to which the 4^th Amendment’s guarantee of privacy applies to data stored in a cloud.

This post is about a different but related issue: the extent to which the federal statutes that govern intercepting communications and accessing stored data apply to cloud computing.

In analyzing the statutory issues, I’m going to deal with two scenarios: In the first, law enforcement officers copy data as it is in the process of being uploaded to the cloud. (The same issues would arise if they copied the data as it was being downloaded from the cloud, but I’m going to focus primarily on uploading, for reasons I’ll explain later.)

In the second scenario, law enforcement officers copy data that is being stored on a cloud. In neither scenario do the officers obtain a warrant before copying the data.

The critical issue in the first scenario is whether the officers who copied the data “intercepted” the contents of a communication in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 9-352, June 19, 1968, 82 Stat. 197, which was codified at 18 U.S. Code §§ 2510-2521. As Wikipedia explains, Title III was adopted to implement two U.S. Supreme Court decisions: Katz, v. United States, 389 U.S. 347 (1967) and Berger v. New York, 388 U.S. 41 (1967).

As I’ve explained before, in the Katz case the Supreme Court held it was a “search” under the 4^th Amendment for FBI agents to wiretap calls Charles Katz made from inside a phone booth. The Court found that by going into the booth and closing the door, Katz manifested a “reasonable expectation of privacy” in the content of his calls; as I’ve explained, the Katz Court held that when one manifests a reasonable expectation of privacy in a place or thing, the 4^th Amendment protects that place or thing. Since the place/thing is protected by the 4^th Amendment, officers must have a search warrant or an exception to the warrant requirement to examine (search) the place/thing. In Berger, the Supreme Court held that a New York wiretap statute that did not require officers to comply with 4^th Amendment requirements in order to get a wiretap authorization was unconstitutional.

We could simply be using the Katz and Berger decisions as our guide to how the 4^th Amendment applies to the interception of phone calls and other communications, but Congress thought it was necessary to adopt statutes governing this type of activity. That is why Congress adopted, and the President signed, the bill that gave us the Title III-based provisions of the federal code. Title III’s requirements for intercepting the contents of communications actually go beyond the 4^th Amendment in certain respects, such as requiring that a prosecutor approve applications for wiretaps and that such applications include a statement by officers saying that they need to use wiretaps because other methods have been tried and failed (or are likely to fail) or are too dangerous to use.

Okay, all that means is that law enforcement’s intercepting the contents of telephone calls must comply with the requirements of the 4^th Amendment as slightly expanded by Title III. (Failing to do so is a crime.) So we need to review what Title III says.

When it was originally adopted, Title III applied to intercepting the contents of phone calls. In the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 – Congress expanded the scope of Title III so it now applies to “wire, oral or electronic communications.” 18 U.S. Code § 2511(1)(a). That brings us back to the first scenario: Law enforcement agents copy a file as I upload it to my storage in the cloud; we’ll assume, for the purposes of analysis, that the file is a text file, so its contents are analogous to the conversations Katz had in the phone booth. (I’m not saying that the file wouldn’t contain “content” encompassed by Katz or Title III if it consisted of jpgs or other non-text data; I’m simply assuming text to make the analysis as analogous to what happened in Katz as possible).

If the agents copy the file as I am sending it to the cloud, have they “intercepted” the contents of an electronic communication? The original version of Title III defined “intercept” as the “aural acquisition” of the contents of a phone call. The drafters of Title III didn’t spend much time defining intercept because the only way you can capture the contents of a phone call is to do so in real-time, because the content’s existence is transient. That, of course, changed with electronic communications; you can capture them while they’re being transmitted or while they’re in storage (which we’ll get to in a minute). In this first scenario, though, I think we clearly have the “interception” of the contents of the file because the agents acquire the contents contemporaneously with the transmission of the file to the cloud. Courts have held that interception requires that the officers capture the contents while it is being transmitted.

So we have interception. We also have the acquisition of the contents of the file, so we have two elements – interception and contents – that are analogous to what happened in Katz. The critical issue, I think is whether we have an electronic “communication.”

Section 2510(12) of Title 18 of the U.S. Code defines terms used in Title III. It defines an electronic communication as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce”. On its face, that definition is, I think, clearly broad enough to encompass my transferring data from my computer to a server in a cloud. A prosecutor, however, could argue that my transferring data from my computer to the cloud server is not a communication because I am not transmitting information to another human being.

I can’t find any reported cases that deal with this issue, but Black’s Law Dictionary defines communication as the “exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception” Black’s Law Dictionary (8^th ed. 2004). Since Title III was implementing the Court’s decision in Katz, that is the exactly the kind of communication it was intended to protect, which means this could be a very credible argument.

I focused the first scenario on my uploading the file to the cloud – instead of on my downloading it from the cloud – because I thought uploading was conceptually a little more analogous to the calls at issue in Katz than downloading. In downloading, the transfer of data is coming from an inanimate source to me; even though I initiated the transfer, it looks a little less like Katz’s phone calls, I think, than uploading.

That brings me to the second scenario, in which the officers copy the file as it is stored on the cloud. I’m assuming the company that owns the cloud servers gave the officers access to the server on which my data was stored, so they didn’t commit the crime of unauthorized access to a computer.

In my first post on cloud computing I analyzed whether copying data stored on a cloud would violate the 4^th Amendment. Though there are credible arguments that it would not, I disagree, as I explained there. In this post, I’m going to focus on whether the federal statues that protect stored data would protect my information in the cloud.

The statute that applies here is the Stored Communications Act (SCA), Pub. L. 99-508, 100 Stat. 1860 (1986). Congress adopted the SCA to provide some protection for stored data; as I noted in my earlier post, some say it is outside the 4^th Amendment under the Supreme Court’s decision in Smith v. Maryland.

The SCA applies to “electronic communication services” and to “remote computing services”, terms that made much more sense in 1986 than they do today. The SCA defines “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications”. 18 U.S. Code § 2510(15). It defines “remote computing service” as “the provision to the public of computer storage or processing services by means of an electronic communications system”. 18 U.S. Code § 2711(2).

The SCA says that providers of electronic communication or remote computing services “shall not knowingly divulge” the contents of a communication that is being stored on an electronic communication service or is “carried or maintained” on a remote computing service. 18 U.S. Code § 2702(a). The prohibition is subject to certain exceptions, such as disclosing the contents to the person who sent it or was the intended recipient and disclosing contents that the provider inadvertently obtained and that relate to a crime. 18 U.S. Code § 2702(b). Law enforcement can obtain the contents of an electronic communication that has been stored on an electronic communications service for 180 days or less by getting a search warrant that complies with the 4^th Amendment. Officers can get the contents of such a communication that has been stored for more than 180 days and can get the contents of an electronic communication from a provider of remote computing services by getting a search warrant, a subpoena or a court order. 18 U.S. Code § 2703(b). The premise is that communications (emails) stored for less than 180 days get 4^th Amendment protection, while everything else does not.

Getting back to my second scenario, whether the officers acted lawfully when they got a copy of my file from the cloud server depends on a couple of things. One is whether the operator of the cloud server qualifies as a provider of electronic communication services or is a provider of remote computing service. If the company that owns the cloud service to which I subscribe simply operates a cloud data storage service, then it would seem to be a provider of remote computing services; if that is true, then the officers could use a subpoena (a grand jury or administrative subpoena) or a court order to get the copy of my file. Neither a subpoena nor the court order requires that they have probable cause to believe the file contains evidence of a crime, so neither satisfies the requirements of the 4^th Amendment. The SCA is based on the premise that under Smith v. Maryland I don’t have a 4^th Amendment expectation of privacy in stored data, so the statute is, in effect, giving me more privacy protection than I’m entitled to under the Constitution.

What if, like Apple’s Mobile Me service, the cloud operator also lets me send and receive emails? That would mean it is, at least in part, a provider of electronic communication services which, in turn, MIGHT mean the officers would have to get a search warrant to copy the file. The problem I can see here is the one I noted before -- that the contents of the file may not qualify as the kind of “communication” the SCA is talking about when it refers to communications that have been in storage more than/less than 180 days. By that, it means emails, and my file isn’t an email . . . so it probably falls under the remote computing services option, and can probably be obtained without a warrant.

Personally, I think the statutory approach is too outdated and too fragile to protect our privacy in an era of digital communications. I think this is best handled under the 4^th Amendment; I think the Supreme Court should overrule Smith and apply the 4^th Amendment to communications while they’re in flight and to data we (responsibly) store with reliable data storage agents.

As I noted in an earlier post, in 2003 Congress created a new child pornography crime: producing, receiving, possessing or manufacturing obscene child pornography. PROTECT Act of 2003, Pub. L. No. 108-21 (2003). The new crime is codified as 18 U.S. Code § 1466A.

It defines obscene child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” that depicts (i) a minor engaging in sexually explicit conduct and is obscene (§ 1466A(a)(1) and § 1466A(b)(1)); or (ii) “an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and lacks serious literary, artistic, political, or scientific value (§ 1466A(a)(2) and § 1466A(b)(2)).

The latter part of the statute is intended to implement the U.S. Supreme Court’s standard for determining what is obscene: In Miller v. California, 413 U.S. 15 (1973), the Court held that to be constitutional under the First Amendment, obscenity statutes must “be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Miller v. California, supra.

In this post, I’m going to review two federal court decisions, one of which held that § 1466A is constitutional and the other of which held that it is not. We’ll start with the case that upheld its constitutionality.

In 2004, Dwight Whorley was charged with 19 counts of violating § 1466A(a)(1) after employees of the Virginia Employment Commission discovered he’d been using a computer in their public resource room to download “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.” U.S. v. Whorley, 550 F.3d 326 (U.S. Court of Appeals for the Fourth Circuit 2008). The indictment charged Whorley with “knowingly receiving” the child pornography.

Whorley went to trial and was convicted on all the § 1466A counts. He appealed, arguing, in part, that § 1466A(a)(1) was unconstitutional as applied to the

cartoon drawings that formed the basis for the charges . . . because cartoon figures are not depictions of actual people. He argues that § 1466A(a)(1) necessarily requires that the visual depictions be of actual minors and that if the depiction of an actual minor is not required, then [it] would be unconstitutional on its face under . . . Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

U.S. v. Whorley, supra. As I’ve noted before, in the Ashcroft case the U.S. Supreme Court held that a statute that criminalized the possession of virtual child pornography violated the First Amendment. The Ashcroft Court applied an earlier Supreme Court decision – New York v. Ferber, 458 U.S. 747 (1982) – which had held that real child pornography can be criminalized without violating the First Amendment because while it’s speech, it is speech the creation of which involves the victimization of real children. The Ashcroft Court held that since virtual child pornography does not involve the use of real children and therefore does not “harm” real children, it cannot be criminalized without violating the First Amendment.

Whorley’s first argument was based on the structure of the provisions of § 1466A(a):

Whorley points out that subsection (a)(1) (prohibiting depictions of `a minor engaging in sexually explicit conduct’) is mirrored in subsection (a)(2) (prohibiting `an image that is, or appears to be, of a minor’). . . . He argues that the `appears to be’ language in subsection (a)(2) indicates reference to a real minor in subsection (a)(1). In addition, he contends that subsection (a)(1) prohibits material depicting `sexually explicit conduct,’ which is defined in 18 U.S. Code § 2256 as referring to real people. Section 2256 defines `sexually explicit conduct’ . . . as actual or simulated sexual intercourse, “whether between persons of the same or opposite sex.” 18 U.S. Code § 2256(2)(A).

U.S. v. Whorley, supra. The Court of Appeals didn’t buy his argument:

While § 1466(a)(1) would clearly prohibit an obscene photographic depiction of an actual minor engaging in sexually explicit conduct, it also criminalizes receipt of `a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,’ that `depicts a minor engaging in sexually explicit conduct’ and is obscene. . . . In addition, Whorley overlooks § 1466A(c), which unambiguously states that `[i]t is not a required element of any offense under this section that the minor depicted actually exist.’ . . . The . . . language is sufficiently broad to prohibit receipt of obscene cartoons. . . .

U.S. v. Whorley, supra. Whorley then tried his First Amendment argument, claiming that if § 1466A(a)(1) did not require that “an actual minor . . . be depicted”, it violated the Supreme Court’s ruling in Ashcroft. As the Court of Appeals noted, there was “no suggestion that the cartoons in this case depict actual children; they were cartoons.” U.S. v. Whorley, supra.

Whorley’s problem was that the Ashcroft Court noted that the First Amendment “does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.” Ashcroft v. Free Speech Coalition, supra. The Court of Appeals held that § 1466A can be applied to cartoons and other material that does not depict a real child because it is an obscenity statute, not a child pornography statute; to violate § 1466A, the material must be obscene, which means the statute is “a valid restriction on obscene speech” under the Supreme Court’s ruling in Miller v. California.

A few months earlier, a federal district court (a federal trial court, rather than a federal appellate court) reached a different conclusion with regard to one provision of § 1466A. Like Whorley, Christopher Handley was indicted for receiving (§ 1466A(a)) and for possessing (§ 1466A(b)) obscene child pornography in based on his having acquired Japanese anime cartoons that depicted minors engaging in sexually explicit conduct. U.S. v. Handley, 565 F.Supp.2d 996 (U.S. District Court for the Southern District of Iowa 2008). Handley moved to dismiss the charges, arguing that they violated the First Amendment.

One of Handley’s arguments was an Ashcroft argument that was essentially identical to the argument Whorley made. Like Whorley, Handley lost on the argument because the federal district court judge, like the Court of Appeals, held that the statute punishes the receipt and possession of obscene child pornography, not simply child pornography. Since the statute targets obscene material, the court held, it does not violate the First Amendment. U.S. v. Handley, supra.

The Iowa federal judge reached a different conclusion on Handley’s other argument, which was that the subsections of § 1466A differed in terms of the extent to which they required that the material be obscene. Handley had argued that

subsections 1466A(a)(2) and (b)(2) ban virtual child pornography that is not obscene, prohibiting sexually-oriented speech without considering whether it appeals to the prurient interest or is patently offensive. . . . [T]he only element from the three-prong Miller test incorporated into these subsections of § 1466A is that the depiction must lack serious literary, artistic, political, or scientific value.

U.S. v. Handley, supra. The federal judge agreed. He found that §§ 1466A(a)(1) and 1466A(b)(1) “clearly require the material be obscene and the three-prong Miller test would necessarily be incorporated into the essential elements” of the offenses defined by both provisions. U.S. v. Handley, supra.

The language of subsections 1466A(a)(2) and (b)(2) does not require the material be deemed obscene. Instead, those sections merely require that the jury find the material depicts a minor, or what appears to be a minor, engaging in at least one of the acts enunciated in the list of various sexually-explicit conduct contained in subsections 1466A(a)(2)(A) or (b)(2)(A), and that the visual depiction lacks serious literary, artistic, political, or scientific value.

U.S. v. Handley, supra. As I noted earlier, the (a)(2) and (b)(2) subsections only require that the material depict “an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and lacks serious literary, artistic, political, or scientific value.” The judge in the Handley case held that this did not implement the Miller requirement that the determination of obscenity must focus on three issues:

(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . . .

Miller v. California, supra. The judge therefore held that these subsections of § 1466A violate the First Amendment. U.S. v. Handley, supra.

As far as I can tell, the obscene child pornography offense was added to the federal criminal code to give prosecutors an additional option: If they can’t prove that images depict real children, they can still prosecute the person who received, possessed, produced or manufactured them if the images are obscene under Miller. I don’t know why Congress didn’t incorporate the three-pronged Miller test into the statute.

Since Whorley was only charged with receiving obscene child pornography in violation of § 1466A(a)(1), the Miller issue the Handley court addressed did not come up in his case.

Last Wednesday a federal court of appeals issued an opinion that’s going to have an impact on how law enforcement searches for and seizes electronic evidence.

I called this post “earthquake” because the decision is definitely going to shake things up in this area; whether it’s a 2.0 or a 9.0 on the digital Richter scale depends on how well it’s received by other courts. I’ll return to that issue after I describe and analyze the opinion.

The opinion is U.S. v. Comprehensive Drug Testing, Inc., 2009 WL 2605378 (U.S. Court of Appeals for the Ninth Circuit 2009). It arose from the investigation into steroid use by professional baseball players; in 2002, the Major League Baseball Players and Major League Baseball entered into a collective bargaining agreement that provided for drug testing of all players. Comprehensive Drug Testing (CDT) collected the specimens to be tested; Quest Diagnostics, Inc., performed the actual tests.

In the course of the investigation, federal agents developed probable cause to believe 10 players had tested positive for steroids. They got a warrant authorizing them to search CDT’s facilities for records pertaining to these 10 players. But when they executed the warrant, the agents “seized and promptly reviewed the drug testing records for hundreds of players in Major League Baseball”. U.S. v. Comprehensive Drug Testing, Inc., supra. CDT moved for return of the seized property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, and that began a course of litigation that’s lasted for years.

I’m not going to attempt to summarize the motions and rulings and appeals that have gone on in this litigation. If you check out this most recent opinion, you’ll get a good idea of what’s gone on. It looks to me like this opinion is something more than just another round in the battle between CDT and the federal government; it looks to me like the Ninth Circuit Court of Appeals decided to use this case as the occasion to address issues that had presumably been troubling the judges for some time.

I base that conclusion on language in the opinion and on the fact that this opinion was issued by an en banc Court of Appeals; as Wikipedia explains, federal appeals are usually heard by 3 Court of Appeals judges. A federal Court of Appeals can, if a majority of the judges that compose that court so decide, have an appeal heard by a majority of the judges on the court; as Wikipedia explains, en banc appeals in the Ninth Circuit are heard by 11 of the court’s 28 appellate judges. As Wikipedia notes, under federal law en banc proceedings “are disfavored but may be ordered . . . to maintain uniformity of decisions within the circuit or if the issue is exceptionally important.” I’m guessing that both factors prompted the en banc hearing in this case.

What’s extraordinary about this opinion is that after going through all the discrete issues involved in the appeal, the en banc court outlines guidelines officers must follow when they conduct computer searches and seizures: “When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, . . . magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion”. U.S. v. Comprehensive Drug Testing, Inc., supra. The court then summarizes the five principles that constitute this “guidance”:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

As I explained in an earlier post, the plain view doctrine lets officers seize evidence they observe that is not within the scope of their search warrant but that they observe while searching for evidence that is within the scope of the warrant. The en banc court found that applying the doctrine to digital searches and seizures creates potential for abuse: Officers could seize massive quantities of data on the premise that it includes at least some evidence that is within the scope of their warrant; then, as they go through the data, they can seize (and use) (i) evidence that is within the scope of the warrant and (ii) evidence that is not within the scope of the warrant but that is seizable under the plain view doctrine. The en banc court found that to prevent abuse magistrates who issue digital search warrants must require the government to “forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data”. U.S. v. Comprehensive Drug Testing, Inc., supra. If the government refuses, the magistrate must “order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant”. U.S. v. Comprehensive Drug Testing, Inc., supra.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that [they] will not disclose to the investigators any information other than that which is the target of the warrant.

This reinforces the issue noted above, i.e., the concern that by seizing a mass of digital evidence investigators can leverage the forensics process to find evidence that is not within the scope of the warrant and as to which they did not have the probable cause needed to obtain another warrant.

3. Warrants . . . must disclose the actual risks of destruction of evidence. . . .

The en banc court found that this is necessary to prevent the government from using “theoretical risks” of data destruction to persuade magistrates to issue search warrants and/or expand the scope of digital search warrants.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.

Again, the en banc court found that this is necessary to prevent investigators from unconstitutionally expanding the scope of the search that is authorized by a warrant.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

Here, too, the court is concerned about investigators’ manipulating the warrant process: “When . . . the government comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant, it must not be allowed to benefit from its own wrongdoing by retaining the wrongfully obtained evidence or any fruits thereof.” U.S. v. Comprehensive Drug Testing, Inc., supra. The court also noted the need to return non-responsive data under the basic rule I discussed in an earlier post.

That’s just an abbreviated summary of what the en banc court did in this case. What do I think of the opinion? Well, I’m amazed.

I’m not amazed by the concerns the court raises because I, too, share some of those concerns. I’m amazed that a federal Court of Appeals has essentially announced a rule book for digital searches and seizures.

And mostly, I’m wondering if the court has the power to do that. I just did some basic research to see if I could find any cases (or law review articles or treatises) that say a court can require law enforcement officers to waive a 4^th Amendment exception in order to obtain a search warrant. I didn’t find anything, which doesn’t surprise me.

It looks to me like what the en banc court has done is analogous to what some federal district courts did a few years ago. Those courts required the government to submit, and to follow, a search protocol whenever it obtain a digital search warrant; the notion was to ensure that the analysis of the seized data (the “search”) didn’t exceed the scope of the warrant itself. We don’t hear much about search protocols any more because a number of federal Courts of Appeals (including the Ninth Circuit) have held that protocols aren’t necessary because the OBJECT of the search serves to narrow the search itself. That is, they said that if agents are looking for child pornography, the fact they’re looking for child pornography is enough to keep the search within the scope of the warrant. (That’s oversimplifying a bit, but this post is already quite long.)

What the Ninth Circuit’s done has the potential to re-ignite a debate that was ranging when a few lower federal courts were requiring protocols. The issue in the debate is the role of the magistrate who issues a search warrant: Is, as the government will argue, the magistrate’s role limited to the essentially clerical process of reviewing a search warrant to see that it’s based on probable cause, specifically describes the place to be searched and the item(s) to be searched for? Or can the magistrate who issues a search warrant use the warrant to impose restrictions on how the government (i) executes the warrant (seizes data) and (ii) analyzes the data once it’s been seized?

The magistrates who were requiring protocols argued that under the 4^th Amendment they’re responsible for ensuring that the execution of a search warrant – as well as the issuance of a warrant – complies with the requirements of the 4^th Amendment . . . which means that they have the constitutional authority to impose requirements on the government’s execution of a warrant. It looks to me like the en banc Ninth Circuit’s opinion is at least implicitly based on the latter theory.

One final note: The magnitude of the earthquake generated by this opinion will depend on how other courts treat it. In the federal system, district courts are trial courts and the Courts of Appeals are intermediate appellate courts, operating between the district courts and the U.S. Supreme Court. As Wikipedia explains, there are 11 federal Courts of Appeals, each of which covers a specific geographical area. The Ninth Circuit covers California and other Western states; the rulings of the Ninth Circuit Court of Appeals only bind federal district courts in those states. The other federal Courts of Appeals do not HAVE to follow this opinion, nor do federal district courts in states other than those that comprise the Ninth Circuit. The same is true for state trial courts, courts of appeals and state Supreme Courts.

So . . . if a lot of other federal and state courts buy into the Ninth Circuit’s opinion, then the decision is likely to have a major impact on digital search and seizure law. If only a few (or none) buy into it, then the impact will be limited to the courts in the states that comprise the Ninth Circuit.

And then there is that other possibility: The Department of Justice might try to take this issue to the U.S. Supreme Court, in the interests of resolving the issue I noted above once and for all.