Monday, July 29, 2013
Courts and commentators have struggled with the problem of cabining digital searches while still allowing law enforcement sufficient latitude to be efficient and effective. Many solutions have been bandied about, including abandoning the plain view doctrine in the digital realm and requiring a search protocol in the warrant.
This Note examines the current proposals before proposing a solution of its own. The root of the problem with digital searches is that such searches have been wholly lacking in the constitutional requirement of particularity in the warrant. But the difficulty is in adequately describing, ex ante, 'where' to search within a corpus of seized data.
Data is information, and information has meaning — semantics. Computers are getting better and better at sorting and segregating data according to the human meaning it represents. Magistrate judges can describe, ex ante, the semantic zone in which the evidence sought is likely to be, in non-technical natural language. Forensic examiners can use automated tools to retrieve information responsive to that semantic description without searching the entirety of the data. The privacy of suspects, guilty and innocent, can be protected without giving up the plain view doctrine or compromising effective law enforcement.