Questioning Courts' Deference to Broad Electronic Searches

http://ow.ly/8d1fC

An article by Peter D. Hardy and Abraham Rein published by the Legal Intelligencer, and posted on law.com and the LTN webpage.

The article discusses the Fourth Amendment and looks at search warrants issued for electronically stored information during criminal investigations.

The article states, "Many courts acknowledge Fourth Amendment concerns but nonetheless proceed to embrace, implicitly or explicitly, the following notion: Because investigators do not know in advance where any contraband is located, practical considerations allow them to examine every electronic folder and document seized, however briefly, to rule out the possibility that it contains evidence sought by the warrant.

A recent opinion by the 6th U.S. Circuit Court of Appeals, United States v. Richards, has continued this trend toward sanctioning broad searches and did so by citing heavily to an opinion issued earlier in 2011 by the 3rd Circuit, United States v. Stabile."

The article further discusses another case, United States v. Comprehensive Drug Testing Inc., and the article states that the case, "...imposed several procedural requirements on the government as to computer searches. The court upheld three orders granting Rule 41(g) motions for return of property filed as to searches of laboratories in a grand jury investigation of steroid use in major league baseball."  This case also pointed out concerns about government investigations, and suggested that they should not be able to conduct searches without limits as to what information they are seeking, and can ultimately use as evidence.

The article provides further discussion and analysis of this issue, and ultimately states, "It may be that the few scenarios left for a successful overbreadth claim include when the warrant simply fails to describe the offenses that are the basis of the search, when the warrant does not tie the electronic data to the offenses under investigation or when the government violates its own self-described search strategy. Although courts might be embracing this result as a marriage of necessity between the Fourth Amendment and modern technology, the recitations of concerns against electronic searches inevitably devolving into general searches appear to be eloquent but rarely material to case outcomes."