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Searching and Seizing Computers Searching and Seizing Computers Obtaining Electronic Evidence in Criminal Investigations Computer Crime and Intellectual Property Section Criminal Division United States Department of Justice July 2002 DOWNLOADED FROM: Sovereignty Education and Defense Ministry (SEDM) Website http://sedm.org TABLE OF CONTENTS • PREFACE ................................................................................................... 6 • IN"TRODUCTION .......................................................................................... 7 • I. SEARCHIN"G AND SEIZIN"G COMPUTERS WITHOUT A WARRANT .................... 10 • A. Introduction .................................................................................... 10 • B. The Fourth Amendment's "Reasonable Expectation of Privacy" ....................... in Cases Involving Computers .................................................................... 11 • 1. General Principles ..................................................................... 11 • 2. Reasonable Expectation of Privacy in Computers as Storage Devices ......... 11 • 3. Reasonable Expectation of Privacy and Third-Party Possession ................ 13 • 4. Private Searches ........................................................................ 15 • 5. Use of Technology to Obtain Information ............................................ 17 • C. Exceptions to the Warrant Requirement in Cases Involving Computers ................ 18 • 1. Consent .................................................................................. 18 • a) Scope of Consent .............................................................. 18 • b) Third-Party Consent .......................................................... 20 • c) Implied Consent ............................................................... 23 • 2. Exigent Circumstances ................................................................. 24 • 3. Plain View ............................................................................... 25 • 4. Search Incident to a Lawful Arrest ...................................................26 • 5. Inventory Searches ..................................................................... 27 • 6. Border Searches ........................................................................ 28 • 7. International Issues ..................................................................... 29 • D. Special Case: Workplace Searches .......................................................... ,31 • 1. Private Sector Workplace Searches .................................................. 31 • a) Reasonable Expectation of Privacy in Private-Sector Workplaces ..... 32 • b) Consent in Private Sector-Workplaces ..................................... 32 • c) Employer Searches in Private-Sector Workplaces ........................ 33 • 2. Public-Sector Workplace Searches ................................................... 33 • a) Reasonable Expectation of Privacy in Public Workplaces ............... 34 • b) "Reasonable" Workplace Searches Under O'Connor v. Ortega ......... 36 • c) Consent in Public-Sector Workplaces ..................................... .39 • II. SEARCHIN"G AND SEIZIN"G COMPUTERS WITH A WARRANT .......................... .40 • A. Introduction .....................................................................................40 • B. Planning the Search ........................................................................... .43 • 1. Basic Strategies for Executing Computer Searches .............................. .43 2 • a) When Hardware Is Itself Contraband. Evidence. or an ................ Instrumentality or Fruit of Crime ..............................................44 • b) When Hardware is Merely a Storage Device for Evidence of Crime ... , ,,.. ,,;,,., ,,,..,,,,,. ,,,,.,,, ,.,,, ,,.., , , ,. .,,, ,. .. , .,, ,,., ,,,.., ,, ,.,, ,,44 • 2. The Privacy Protection Act .......................................................... .46 • a) A Brief History of the Privacy Protection Act ........................... .46 • b) The Terms of the Privacy Protection Act ................................. .47 • c) Application of the PP A to Computer Searches and Seizures ........... .48 • 3. Civil Liability Under the Electronic Communications Privacy Act ............. 51 • 4. Considering the Need for Multiple Warrants in Network Searches ............. 52 • 5. No-Knock Warrants .................................................................... 53 • 6. Sneak-and-Peek Warrants ............................................................. 54 • 7. Privileged Documents .................................................................. 55 • a) The Attorney General's Regulations Relating to Searches of. .......... Disinterested Lawyers. Physicians, and Clergymen ........................ .55 • b) Strategies for Reviewing Privileged Computer Files .....................56 • C. Drafting the Warrant and Affidavit ........................................................... 57 • Step 1: Accurately and Particularly Describe the Property to be Seized in the,,. Warrant and/or Attachments to the Warrant .......................................... .57 • Step 2: Establish Probable Cause in the Affidavit .................................... 62 • Step 3: In the Affidavit Supporting the Warrant, Include an Explanation of .. the Search Strategy (Such as the Need to Conduct an Off-site Search) as Well as the Practical and Legal Considerations That Will Govern the Execution of the Search ................................................................................... 64 • D. Post-Seizure Issues ............................................................................. ,69 • 1. Searching Computers Already in Law Enforcement Custody .................... 69 • 2. The Permissible Time Period For Examining Seized Computers ............... 70 • 3. Rule 4l(e) Motions for Return of Property ..........................................72 • III. THE ELECTRONIC COMMUNICATIONS PRIVACY ACT .................................. 74 • A. Introduction ......................................................................................74 • B. Providers of Electronic Communication Service vs. Remote Computing Service ..... 76 • C. Classifying Types of Information Held by Service Providers ............................ 80 • 1. Basic Subscriber Information Listed in 18 U.S.C. § 2703(c)(2) ................. 80 • 2. Records or Other Information Pertaining to a Customer or Subscriber ......... 81 • 3. Contents .................................................................................. 81 • D. Compelled Disclosure Under ECPA ......................................................... 82 • 1. Subpoena ................................................................................ 82 • 2. Subpoena with Prior Notice to the Subscriber or Customer ...................... 83 • 3. Section 2703(d) Order ................................................................. 84 • 4. § 2703(d) Order with Prior Notice to the Subscriber or Customer .............. 85 • 5. Search Warrant .......................................................................... 86 • E. Voluntary Disclosure ........................................................................... 87 3 • • F. Quick Reference Guide .... 00 ....... 00 .......................................................... 88 • G. Working with Network Providers: Preservation of Evidence, Preventing ... 00 ....... Disclosure to Subjects, and Cable Act Issues ....... 00 ............ 00 ............................ 89 • 1. Preservation of Evidence under 18 U.S.C. § 2703([) oo•·········oo·····oo····oo ... 90 • 2. Orders Not to Disclose the Existence of a Warrant, Subpoena................. or Court Order .............................................................................. 91 3. The Cable Act, 47 U.S.C. § 551 ....... 00 00 ........................................... 91 • H. Remedies ........................................................................................ 92 • 1. Suppression .............................................................................. 92 • 2. Civil Actions and Disclosures ......................................................... 93 • IV. ELECTRONIC SURVEILLANCE IN COMMUNICATIONS NETWORKS ................. 94 • A. Introduction ...................................................................................... 94 • B. Content vs. Addressing Information ......................................................... 94 • C. The Penffrap Statute, 18 U.S.C. §§ 3121-3127 oo .... oo ...... oooo············ ......... 00 ... 95 • D. The Wiretap Statute ("Title Ill"), 18 U.S.C. §§ 2510-2522 00.00 ............. 00 ..... 00 ... 98 • 1. Introduction: The General Prohibition ..............................................98 • 2. Key Phrases ............................................................................. 99 • 3. Exceptions to Title III ..... 00 ........... 00 ........... 00 ............. 00 ................ 101 • a) Interception Authorized by a Title ill Order, 18 U.S.C. § 2518 ....... 102 • b) Consent of a Party to the Communication, 18 U.S.C. § 2511(2)(c)(d) ......... oo•·· ........................................ 102 • c) The Provider Exception, 18 U.S.C. § 2511(2)(a)(i) ... oo ................ 104 • d)TheComputerTrespasserException. 18 U.S.C. § 2511(2)(i) ... 00 .... 108 • e) The Extension Telephone Exception. 18 U.S.C. § 2510(5)(a) ........ .108 • Q The 'Inadvertently Obtained Criminal Evidence' Exception, 18 U.S.C. § 2511(3)(b)(iv) 00 ...
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