Thursday, March 10, 2011
Benjamin Holley has posted Digitizing the Fourth Amendment: Limiting the Private Search Exception in Computer Investigations (Virginia Law Review, Vol. 96, p. 677, 2010) on SSRN. Here is the abstract:
The “Private Search” exception to the Fourth Amendment allows law enforcement officers to re-create, without a warrant, a search conducted by a private individual, provided two conditions are met. First, the individual may not act at the behest of the government (the agency prong) and second, officers may not search beyond what was already discovered by the private searcher (the scope prong). The exception is premised on the theory that the private searcher destroyed whatever expectation of privacy the suspect had in his information, thereby eliminating any Fourth Amendment protection. In applying this otherwise well-understood exception to searches of computers, however, courts have adopted widely varying approaches based on divergent assumptions and leading to dramatically different results. This Note argues that, because of the nature of computer storage, courts should narrow the application of the private search exception by broadly interpreting the “agency” prong and narrowly interpreting the “scope” prong. Such an approach maintains the purpose of the exception without unduly sacrificing informational privacy or law enforcement efficacy.