Harvard Law School Berkman Center for Internet & Society The Berkman Center for Internet & Society at Harvard Law School

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Digital Discovery in the Criminal Context

In the realm of digital discovery, judges continue to stretch existing legal parameters to encompass the novel problems raised by the Internet and electronically stored and generated data. As one district court judge aptly noted: "Judges and legislators faced with adapting existing legal standards to the novel environment of cyberspace struggle with terms and concepts…[and] not surprisingly, much of the legal analysis of Internet-related issues has focused on seeking a familiar analogy for the unfamiliar."(1)

The criminal context is yet another arena in which courts seek guidance from current laws in order to balance the need for privacy protections with law enforcement efforts.(2) In his 1994 article, Raphael Winick predicted that existing constitutional and statutory authority-namely, the Fourth Amendment, the Electronic Communications Privacy Act ("ECPA"), and the Privacy Protection Act ("PPA")-would adequately protect electronic data, thus obviating the need for forming new laws.(3) He posed five major principles: "1: The Fourth Amendment affords computer storage the highest expectation of privacy; 2: The Tamura rule(4) should govern the scope of searches and seizures of all forms of computer data; 3: Government searches and seizures of computers motivated by disapproval of the content of the information sought must be subjected to the most exacting constitutional scrutiny; 4: The ECPA limits the ability of the government and private parties to obtain private computer communications; 5: The PPA places strict limitations on government attempts to seize the system hardware of computer [Bulletin Board Systems ("BBSs")] or to shut them down altogether."

In the years since Winick published his article, courts seem to have behaved largely as he predicted: as Winick envisioned, courts have adapted the existing procedural protections in an attempt to balance law enforcement needs for surveillance and seizure of digital evidence with the constitutional requirement to protect reasonable expectations of privacy. However, unlike other areas of Fourth Amendment jurisprudence, suppression of evidence-a critical method of enforcing Fourth Amendment protections-is not available as a remedy to a violation, because the ECPA and PPA only allow for civil damages.(5) Below is a brief review of several recent cases relating to criminal digital discovery.

In Steve Jackson Games v. U.S. Secret Service, the Fifth Circuit held that Title II of the ECPA clearly applies to the conduct of the Secret Service;(6) the court interpreted the ECPA and concluded that "Congress intended to treat wire communications differently from electronic communications [because] [a]ccess to stored electronic communications may be obtained pursuant to a search warrant; but, access to stored wire communications requires a court order."(7)

In Davis v. Gracey, the Tenth Circuit held that a search warrant for pornographic CD-ROMs and "equipment, order materials, papers, membership lists and other paraphernalia pertaining to the distribution or display of pornographic material in violation of state obscenity laws" was not overly broad.(8) Among the items searched and seized were CD-ROM discs, computer equipment used to operate a bulletin board system (BBS), monitors, modems, and computers which contained approximately 15,000 email messages stored in electronic storage, some of which had not been retrieved by the intended recipients. The Circuit rejected the plaintiffs container/content analogy and found that the electronically stored materials constituted "instrumentality of the crime" and, thus, their incidental seizure was valid. "The fact that a given object may be used for multiple purposes, one licit and one illicit, does not invalidate the seizure of the object when supported by probable cause and a valid warrant." Id. at 1480. However, the Circuit decision also warned that its holding "should not be read as approval of any subsequent efforts by the police to search or retain the stored files without a warrant." Id. In fact, the court contended that an additional warrant would have been required for the officers to gain access or read the seized email. The Fifth Circuit further noted that few cases exist that interpret the substantive provisions of the ECPA or that apply the good faith defense to violations of Title II of the ECPA. Id. at 1482.

In U.S. v. Kennedy, a Kansas district court found that suppression of evidence relating to the retention and use of child pornography was not a remedy contemplated by the ECPA or the Cable Communications Policy Act (CCPA).(9) The court also found that the defendant knowingly revealed all information connected to his Interpol (IP) address as part of the subscription agreement with Road Runner for Internet service, and, therefore, cannot later claim an expectation of privacy in such information. As such, the defendant did not have a Fourth Amendment privacy interest in his subscriber information and searches of a defendant's computer files by an Internet service provider (Road Runner) and an anonymous caller were not subject to Fourth Amendment protections.

In U.S. v. Charbonneau, a Southern District of Ohio court ruled that the defendant did not have an expectation of privacy in email sent to others in an Internet "chat room" (AOL) focused on child pornography.(10) In this case, the undercover agent recorded the AOL chat room "conversations" as they occurred. The court reasoned (by analogy to telephone and mailed letters) that the defendant ran the risk that his email(s) would be sent or forwarded to an undercover government agent participating in the chat room. As such, any privacy expectation attached to the defendant's sent or received emails was minimal.

(1) Judge Preska in her opinion in American Libraries Assoc. v. Pataki, 969 F.Supp 160 (June 20, 1997) (analogizing the Internet to a highway and thus ruling that the state obscenity statute fell under Interstate Commerce purview).

(2) James Kallstrom, former Assistant Director of the F.B.I. in charge of the New York office, estimated that 95% of the investigations that his former office handles will be computer related.

(3) Raphael Winick, "Searches and Seizures of Computers and Computer Data," 8 Harv. J.L. & Tech. 75 (Fall 1994).

(4) Winick argued that the rules set under United States v. Tamura, 694 F.2d 591, 595-96 (9th Cir. 1982) and United States v. Shilling, 826 F.2d 1365, 1369 (4th Cir. 1987), should be applied to computer storage media. The rule is that "where officers come across relevant documents so intermingled with irrelevant documents that they cannot feasibly be sorted at the site, the officers may seal or hold the documents pending approval by a magistrate of the conditions and limitations on a further search through the documents." Id. at 106.

(5) 36 F.3d 457 (5th Cir. 1994) (holding that seizure of a computer, used to operate an electronic bulletin board system and containing private electronic mail which had been sent to the bulletin board but not read by intended recipients, was not unlawful intercept under the Federal Wiretap Act).

(6) For instance, often valid search warrants will shield law enforcement officers from civil damages suits brought by parties whose electronic data and hardware have been seized in the prosecution of a criminal case. See e.g., Davis v. Gracey, 111 F3d 1472 (10th Cir. 1997) (upholding the search and seizure of computer equipment and stored email files used in connection with or relating to the distribution of obscene materials and affirming that the officers' reliance on a valid search warrant, which the court decided was not overly broad, established a good faith defense); U.S. v. Kennedy, 81 F.Supp.2d 1103 (D. Kan. 2000) (holding that even if an Internet Service Provider divulged defendant's subscriber information pursuant to a court order based on an inadequate government application, suppression of evidence was not a remedy contemplated by the ECPA).

(7) Id. at 464 (citations omitted).

(8) 111 F.3d 1472.

(9) 81 F.Supp.2d 1103

(10) 979 F.Supp 1177 (S.D. Ohio 1997)