COURTING CHAOS: CONFLICTING GUIDANCE FROM COURTS HIGHLIGHTS THE NEED FOR CLEARER RULES TO GOVERN THE SEARCH AND SEIZURE OF DIGITAL EVIDENCE

Abstract

Today's digital devices allow users to store an astounding amount ofpersonal information and data of all types. People now favor hard drives and e-mails over file cabinets and letters. When conducting criminal investigations in today's high-tech world, forensic analysts may compare digital fingerprints rather than physical ones. Investigators must obtain search warrants before examining any digital device for evidence of criminal activity, just as they would before searching a suspect's car, home, or office. In the digital context, however, the warrant requirement goes awry. Traditional search and seizure rules fail to prevent general, exploratory searches, which threaten individual privacy rights. Courts recognizing this problem have adopted "special approaches" for conducting digital media searches. Although these approaches provide greater protection for privacy rights, they often severely hamper legitimate law-enforcement interests. In order to both preserve privacy rights and promote justice, legislatures must enact laws directed at the search and seizure of digital media. These laws should (1) require investigators to follow narrow search protocols, but allow expanded searches where necessary; (2) require investigators to obtain a second warrant before seizing out-of-scope evidence, with a narrow exception; and 3) require a taint team to review digital media containing privileged or third party files.