Limits on Search and Seizure in the Digital Age
PayPal experienced a cyber attack last year that spawned the seizure of computers, and the massive amount of information stored on their hard drives, in the hacking case of U.S. v. Collins, 11-471. Federal agents arrested 14 people and searched targeted computers in a dozen states. In addition to incriminating evidence, the information seized included a flood of tax returns, pictures, records, and e-mails. Currently, the prosecution has come to a halt because the defense has argued that the investigation of the computers is beyond the scope of electronic search and seizure. How far and how realistic it is for the prosecution to sift through thousands of documents and exclude the extra material will force judges to limit electronic searches.
In June 2011, PayPal suspended the accounts of those using the site to fund WikiLeaks, an organization that publishes news leaks from anonymous sources. WikiLeaks was denied access after the U.S. revealed its whistleblowing activities were illegal. As a result, a cyberattack was launched on PayPal’s website in a retaliation referred to as “Operation Avenge Assange” referring to Julian Assange, the founder of WikiLeaks. As part of the investigation, over 35 search warrants were issued nationwide. Arrests were made in 10 states and the District of Columbia, and 14 individuals have been charged with conspiracy and intentional damage to a computer. The charges follow from several denial-of-service attacks on PayPal that spammed computers with communication requests which prevented legitimate users from accessing the website.
After the defendants’ computers were seized, the prosecution was faced with an avalanche of information. The defense argues the information is personal and the government is not entitled to this information, according to the Fourth Amendment’s limits on search and seizures. Thomas Nolan Jr., an attorney representing one of the defendants, has expressed his concern that the FBI is attempting to keep everything seized without any justification. 7 During a routine discovery motion, Nolan expressed his concern that items such as photographs were not needed for the prosecution to prove its case. The prosecution had provided the defense with a copy of the data being used in the case, including an abundance of personal files.
Judge Paul Grewal is familiar with the technological issues and has agreed with the defense’s argument. Judge Grewal ordered that the irrelevant material be eliminated from the discovery, and implemented a 30-day deadline in which the prosecution was to return the material outside the limits of the search warrant. However, the prosecution refused to destroy the irrelevant files because of the undue burden involved in eliminating such evidence. The prosecution feared that deleting some files would render other more relevant programs inoperable. Also, the government argued that the process could take “literally thousands” of hours in addition to compromising evidence. 8 The prosecution appealed further and scheduled a hearing with U.S. District Senior Judge D. Lowell Jensen.
The appeal to Judge Jensen has sparked the attention of many lawyers because it will affect much more than cybercrime cases. Generally, all criminal cases involve the seizure of digital materials at some point in discovery. Hanni Fakhoury, an attorney at the Electronic Frontier Foundation, expressed his frustration with having to search through everything, “Criminals don’t label their contraband.” 9 To Fakhoury, it follows that technology should exist that would allow the filtering process to be more efficient. However, Fakhoury claims the government is contending that technology is too complex to allow such categorization of irrelevant material.
The issue presented to Judge Jensen turned on at least two Ninth Circuit cases: U.S. v. Beusch, 596 F.2d 871, and U.S. v. Tamura, 694 F.2d 591. Both cases were decided around the early 1980’s, before the digitization of the file cabinet. Beusch held that “where ledgers and file all contained incriminating evidence, failure to separate the ledgers and file and take only those portions dealing specifically with such transactions did not constitute an impermissible general search.” 10 Three years after Beusch, Tamura held that “seizure of all of defendant’s employer’s records rather than just records described in search warrant did not warrant reversal since only described records were admitted in evidence.” 11 In other words, the relevant records were buried so deep within the irrelevant that it was permissible to take them for review. Tamura’s holding was modified by U.S. v. Comprehensive Drug Testing in 2010, which upheld requiring the government to return copies of seized evidence not covered by a warrant. 12 This opinion has since been modified as a result of the unpopularity of its procedures. The prosecution argues that Beusch is good law as they equate the computers to a file cabinet that can be kept for evidentiary purposes. On the other hand, the defense stands by Tamura and Comprehensive Drug Testing, arguing that all computer files can be seized as long as the irrelevant materials are later returned and/or deleted.
During the hearing, Judge Jensen sought to end the dispute by ordering the prosecution to surrender all digital copies of computers and electronic devices in the court’s possession. His reasoning concerned the preservation of evidence for trial while also preventing access to information outside the scope of the warrants. “When you seize something, there’s an obvious obligation to keep it intact,” said Jensen. At the end of the hearing, Jensen directed the counsel’s attention to more pressing matters by saying, “We need to be talking about other things – things like trials.”
As the PayPal case demonstrates, the Fourth Amendment is being tested in the digital age. Both criminal and civil litigators will continue to grapple with the problem of how to efficiently identify relevant electronic evidence. Attorneys will be faced with trying to find the most cost-effective way to comply with the Constitution during the discovery process, while also limiting their scope and managing information effectively.
