Document Type
Article
Publication Title
Iowa Law Review
Publication Date
2020
Abstract
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 possibly doomed to fail. Moreover, these ex ante solutions presume that the Fourth Amendment protects privacy-assecrecy 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 method to protect Fourth Amendment security in papers rooted in the ancient inventory and return requirements for executing warrants. In the physical world, officers must prepare an inventory of each thing they seize pursuant to a warrant. I argue we should apply this inventory requirement to electronic information and, in particular, to each file an officer views.
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 officers' searches and seek remedies for searches that go beyond the scope of the warrant. Finally, the threat of remedy will deter over-broad searches. This ex post protection will effect ex ante limits.
Recommended Citation
Laurent Sacharoff,
The Fourth Amendment Inventory as a Check on Digital Searches, 105 Iowa L. Rev. 1643
(2020)
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1693