The Fourth Amendment Inventory as a Check on Digital Searches
57 Pages Posted: 17 Jun 2019 Last revised: 22 Sep 2020
Date Written: June 7, 2019
Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.
These courts have a point. How can an officer know where she will find evidence of, say, drug trafficking until she has opened and at least skimmed most files? When scholars and courts try to protect privacy with ex ante limits, they engage in laudable efforts doomed to fail. Moreover, these ex ante solutions presume that the Fourth Amendment protects privacy-as-secrecy only, the right not to have the files viewed at all. True, secrecy over papers is a basic right. But the Fourth Amendment protects far more; it protects the right “to be secure” in one’s “papers.”
This article is the first to propose an entirely new approach rooted in the ancient inventory requirement of the Warrant Clause. In the physical world, officers must prepare an inventory for the suspect of each item they seize pursuant to a warrant. I argue we should apply this inventory requirement to electronic information and, in particular, to each file officers view.
Providing the inventory will further a person’s right to be secure in her papers for several reasons. She will know which files officers viewed, and which they did not. She will be able to compare those files with the authorization of the warrant. Courts and individuals will, for the first time, have the ability to supervise officer’s searches, and seek remedies for searches that go beyond the scope of the warrant. Finally, this threat of remedy will deter over-broad searches. This ex post protection will effect ex ante limits.
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