The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer

94 Pages Posted: 7 May 2010

See all articles by Thomas K. Clancy

Thomas K. Clancy

University of Mississippi School of Law

Date Written: 2005

Abstract

This article is called a "primer" because it outlines the application of Fourth Amendment principles to the search and seizure of computers and the digital information that is stored in them. It does not purport to address every Fourth Amendment issue that may arise in the computer context because, for many issues, the mere fact that a computer is involved does not change the analysis. Instead, it focuses on situations that are influenced by the fact that the object to be searched and seized is a computer or the data stored on it. Like a traditional primer, this article reports how courts have addressed Fourth Amendment applicability and satisfaction issues in the computer context.

A primer is generally thought of as not espousing a point of view. This article, however, departs from that role in two important respects. First, in discussing the nature of computer and digital evidence searches and seizures, it rejects the view that those intrusions require a "special approach," that is, that unique Fourth Amendment rules are needed to regulate them; instead, this article adopts the view that computers are containers and the data they contain are mere forms of documents. This is to say that the principles applicable to document searches have equal application to electronic data searches. Second, it rejects expansion of the private search doctrine, used by some courts, which permits government agents to open data files that had not been opened during a preceding private party search and still not be a search within the meaning of the Fourth Amendment based on the theory that the "context" in which the file was found negated any reasonable expectation of privacy. Underlying both of these points of view is the perspective that a computer is a container of containers of documents, that is, each individual file is a separate container - just like each manila file in a filing cabinet is a container - that requires a separate opening to determine what is inside. This is to say that the mere fact that an item to be searched or seized is electronic evidence does not fundamentally change the Fourth Amendment analytical structure that governs.

Keywords: Fourth Amendment, Criminal Procedure, Constitutional Law

Suggested Citation

Clancy, Thomas K., The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer (2005). Mississippi Law Journal, Vol. 75, pp. 193-286, 2005, Available at SSRN: https://ssrn.com/abstract=1602052

Thomas K. Clancy (Contact Author)

University of Mississippi School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
662-832-5244 (Phone)

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