Imagine that the cybercrime division of a local police force receives a report of fraudulent credit card purchases, and after linking subpoenaed credit card records to a particular shipping address, officers obtain a warrant to search the computer of the resident for evidence of identity theft and fraud. During a preliminary search of the suspect's hard drive, the investigators discover a folder marked "preteen porno pix" filled entirely with picture and video files. Knowing that the evidence they are looking for is almost certainly contained within a text file, they have little reason to believe that opening this folder will benefit the identity theft investigation and they probably know that doing so will likely be beyond the scope of the warrant. For obvious reasons, however, the investigators have concerns about the folder. Should they be allowed to get a warrant to open the folder, and if so, should its contents be admissible evidence of a crime unrelated to fraud or identity theft? According to some circuits the answer is yes. This scenario, which roughly parallels the fact pattern from the Third Circuit case United States v. Stabile, implicates the use of the plain view exception to the Fourth Amendment, which allows investigators to use any incriminating evidence that is in their plain view as they conduct an otherwise warranted search.' Although the apprehension of a criminal in possession of child pornography is universally desirable, many privacy advocates are uncomfortable with the use of this plain view doctrine in the context of digital searches.2 For physical searches, the plain view doctrine has a proximity restraint, as evidence can only be in plain view if the investigating officer is nearby.3 In the digital context, where the contents of an entire hard drive are effectively "nearby," this proximity restraint no longer exists-prompting one commentator to liken digital searches to "an officer walking into the foyer of a mansion and being able to see in plain view every person and object in the entire structure."4 In light of this potential expansion of what constitutes plain view, how private are our digital files? The question of how to constrain the scope of digital searches is one that has split the circuit courts but has yet to be squarely addressed by the Supreme Court.5 Some courts have largely circumvented the issue by declining to treat digital searches differently than physical searches.6 Alternatively, the Ninth Circuit recommends that magistrate judges employ a comprehensive set of prophylactic measures designed to prevent investigators from overstepping their bounds.7 This Note will analyze the relative strengths and weaknesses of each approach from both a theoretical and legal perspective. Ultimately, this Note reaches the conclusion that the court should prohibit the use of the plain view doctrine in the digital-search context, unless the original search is for evidence of a limited number of "flagged crimes"-sex crimes, crimes against children, or serious felonies. This Note first explores the proposition that current methods for reviewing digital searches are insufficient to protect the privacy interests of suspects; it then evaluates various solutions to this perceived problem. Part II introduces the foundational doctrines that inform search procedure and outlines the unique characteristics of digital data that may make these doctrines inapposite to it. It then explores the circuit courts' different approaches to regulating digital searches. Part III weighs the strengths and weaknesses of several of these approaches, placing an emphasis on what measures are practical, efficient, accurate, and legally enforceable. Part IV suggests that courts should eliminate the plain view doctrine for all digital searches that are not investigating certain categories of crimes.
Looking for Trouble: An Exploration of How to Regulate Digital Searches,
66 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol66/iss2/6