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EFFector Document 3
########## |
########## |
### | THE DOCUMENT CASE
####### |
####### | A collection of briefs, judgments
### | white papers, rulings, and references of
########## | moment to the issues of law and order on
########## | The Electronic Frontier
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########## |
########## |
### | Document #: 3
####### | Title: Constitutional, legal, and ethical
####### | considerations for dealing with electronic
### | files in the age of cyberspace
### | Archived/Published to the Net: August 7, 1991
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|
########## |
########## | Anonymous ftp archive maintained by
### | Mike Godwin and Chris Davis at
####### | The Electronic Frontier Foundation (eff.org)
####### |
### | These documents are in the DOCS subdirectory
### | of the ftp directory. Related files may be
### | found in the EFF and SJG subdirectories.
FEDERAL ENFORCEMENT 1991
Georgetown University Law Center
Washington, D.C.
May 16-17, 1991
CONSTITUTIONAL, LEGAL, AND ETHICAL
CONSIDERATIONS FOR DEALING
WITH ELECTRONIC FILES IN THE AGE OF CYBERSPACE
Harvey A. Silverglate and Thomas C. Viles (FN1)
Introduction -- The Reach of
Cybernetic Technology.
Without pause over the past decade, computers have transformed the
physical organization of work in virtually every office in the nation.
Businesses and law firms are spurning the use of paper to deliver and
store information; instead, they have become dependent upon the use of
computers and electronic systems for these functions. Now it is common to
draft, revise, and edit all documents -- from briefs, to business
proposals, to contracts -- without ever generating a paper "hard" copy
until the document is ready for signature and submission.
Furthermore, now it is possible for the personnel of a company or
law firm to conduct all of their in-house discussions on a computer
network which transmits and receives electronic mail ("e-mail"). E-mail
can be used for written messages of great import as well as trivial asides
and gossip. All such messages can be stored for later retrieval. Using
networks and e-mail in tandem, teams of people in different offices can
create, edit and complete lengthy written projects, literally without ever
speaking to each other, or ever looking at paper copy.
Communications between the office workplace and the outside world
also can be conducted through the use of "networks" of computer systems.
For example, the home office of a company can communicate with all of its
affiliates and subsidiaries by the transmission of written messages
between their respective computers ("nodes", in computer argot). In this
way, all operations which can be performed simultaneously within one
office, can be performed with equal facility among many offices, linked by
the computer networks. Such systems also enable the attorney to stay in
close contact with a client when it is necessary to work together on a
project which requires close attention to detail.
Computers and computer networks also promise to substantially and
rapidly transform civil society. There exists a variety of computer
networks, which enable academic institutions and scholars, to conduct
global conferences on matters of common interest. Through e-mail and
electronic bulletin boards, scholars and researchers can share
experimental data and resources. See "Common Electronic Policy," The
Economist, Feb. 16, 1991, at 24. Recently, the volume of academic message
traffic in the United States has been increasing by 30-40% per month. Id.
This session of Congress is considering a bill, introduced by Sen. Albert
Gore, to spend over $1 billion in computer research, of which $400 million
would be dedicated to the construction of a new National Research and
Education Network (NREN), capable of handling computer traffic many times
faster than the networks currently in existence -- analogous to a new
electronic interstate highway system. See id.; Leccese, "Hackers under
Attack: Crackdown Raises Questions about New Forms of Speech," Boston
Phoenix, Sept. 7, 1990, at 8, 18. It is estimated that the entire project
will cost $200 billion to complete. Leccese, supra, at 22.
There also are smaller networks, too numerous to mention, which
are not affiliated with any company, university, government agency, or
other established entity. These independent networks function as forums
for people all over the world to communicate with one another about
matters of interest, from the sublime to the ridiculous. The largest
computer networks in the United States, InterNet and UseNet, are each
actually made up of 2,000 smaller networks. See, e.g., "Common Electronic
Policy," supra, at 24; Costikyan, "Closing the Net," Reason, Jan. 1991, at
22. InterNet reportedly carries the electromagnetic impulses created by
over 500 billion keystrokes per month. Leccese, supra, at 9.
Approximately 5,000 bulletin boards operate over the networks. Costikyan,
supra, at 22.
One notable example of the use of computer networks for purely
expressive purposes is the Whole Earth 'Lectronic Link ("WELL"), which
provides political activists, small businessmen, rock and roll fans, and
hundreds of other groupings of people (including lawyers) a forum in which
to discuss matters of common interest. The WELL is a "node" capable of
running hundreds of different multi-party conversations (or "conferences")
simultaneously. Like an electronic town meeting, groups of people can
communicate together on a multiplicity of bulletin boards, or users can
send each other private messages by e-mail. (FN2)
Other networks, utilizing more modest equipment, can maintain only
one or two bulletin boards at a time. Everyone with a personal computer
and access to a phoneline can participate in any of these open networks --
and, with only a little extra equipment, can start a new bulletin board.
Searches and Seizures
Involving Cybernetic Machines.
Over the past 15 months, the following incidents have come to our
attention:
*On January 24, 1990, a handful of Secret Service agents,
accompanied by two employees of the local telephone company, seized the
equipment of a twenty year old man living with his mother in New York.
From his bedroom, they seized a Commodore 128 computer, 200 floppy disks,
a telephone answering machine, cassette-playing radio, and all of his
musical cassette tapes. Apparently, the Secret Service was searching for
evidence of alleged "computer crimes." See Dibbell, "On Line and Out of
Bounds", Village Voice, July 24, 1990, at 27; Jahnke, "The Cops Come to
Cyberspace," Boston Magazine, November 1990, at 140; J. Barlow, Crime and
Puzzlement 8P9 (1990) According to some reports, this raid (and a few
other raids which were carried out simultaneously) marked the beginning of
the so-called "Operation Sun Devil," described as a "two-year Secret
Service investigation which involved 150 federal agents, numerous local
and state law enforcement agencies, and the combined security resources"
of numerous private telecommunications companies.(FN3) Barlow, supra, at
9; see also "Crime of the Century," Personal Computer World, Mar. 1991, at
187; Zachary, "Group to Defend Civil Rights of Hackers Founded by Computer
Industry Pioneer," Wall Street Journal, July 11, 1990, at B4; Schatz,
"Foundation to Defend PC Users," Washington Post, July 11, 1990, at B8;
Edelman, "Kapor for the Defense in Computer Field," Boston Globe, July 11,
1990, at 33; "Kapor Forms Group to Aid Hackers," USA Today, July 11, 1990,
at 2B.
*On March 1, 1990 the Secret Service raided the offices of Steve
Jackson Games, a small Austin start-up company which designed and
manufactured fantasy role-playing books and games. The Secret Service
seized the company's three computer systems, two laser printers,
miscellaneous hardware, papers, back-up disks, and a single pocket
calculator. The company's plans and galleys for a new role-playing game,
GURPS Cyberpunk(FN4), also were seized, after an agent opined that the
game was a handbook for computer crime. (The format of Steve Jackson's
games is similar to that of "Dungeons and Dragons"; GURPS Cyberpunk
consists of a lengthy instruction book plus general information about the
game. In fact, all of the company's games consist solely of printed
matter. The company was not in the business of manufacturing any
software.) The Secret Service apparently suspected that an employee of
Steve Jackson Games had participated in unlawful activity on the
employee's own home computer system. At no time was the owner or any
other employee of Steve Jackson Games considered a suspect. Because the
seizure of the computers thoroughly disrupted Steve Jackson's business,
half of the company's employees had to be laid off. It was months before
the company was even able to gain access to its equipment, which held the
manuscript for the about-to-be-published GURPS Cyberpunk game. Some of
the seized equipment ran a bulletin board which was maintained for the
purpose of swapping new role-playing game ideas with similarly interested
people elsewhere in the United States. The board, which users gave the
tongue-in-cheek title of "The Illuminati," ceased to operate. See Levy,
"Search and Destroy: What Happened when the Secret Service Visited Steve
Jackson Games," MacWorld, March 1991, at 51, 52; Costikyan, "Closing the
Net," Reason, Jan. 1991, at 22P24; Lewis, "Can Invaders Be Stopped but
Civil Liberties Upheld?," New York Times, Sept. 9, 1990, at 12; Zachary,
supra, at B4; O'Connor, "$275,000 Donated for Hackers," San Jose Mercury
News, July 11, 1990, at 1F; "Computer Foundation Planned," San Francisco
Chronicle, July 11, 1990, at C4; Edelman, supra, at 39; "Kapor Forms Group
to Aid Hackers," supra, at 2B.
*On the day of the Steve Jackson Games raid, the employee's home
was searched. His computer equipment, software, a quantity of TV cable
wire, and telephone parts were seized and carted away. Also seized was an
arcade version of Pac Man. To date, the employee has not been charged
with any crime. See Lewis, supra, at 12; Dibbell, supra, at 30.
*Two years ago, a computer hobbyist running a small bulletin board
service out of Lockport, Illinois, discovered that his bulletin board had
been used to transmit a telephone company document. He promptly notified
the telephone company, and cooperated fully and voluntarily with law
enforcement authorities in the investigation of what he had reported. He
probably regrets that now, for the Secret Service agents, armed with a
warrant, later seized all of the man's computer equipment, in order to
secure evidence in their investigation of the transfer of telephone codes.
Because of the seizure, his bulletin board was shut down. See, e.g.,
Costikyan, supra, at 24; Leccese, supra, at 21; Goldstein, Special Issue,
"2600 magazine's commentary on Operation Sun Devil," 1 Computer
Underground Digest #1.10 (May 17, 1990) (available on the WELL, April 12,
1991); J. Barlow, supra, at 11-12.
*A college student in Missouri published a computer magazine
entitled Phrack, which he distributed over the networks to about 1,300
people. He found a phone company document on a publicly accessible
computer bulletin board, and he reprinted it in his magazine. Although
the government never alleged that he was involved in taking the document,
his computer system was seized, and he was charged with interstate
transportation of stolen property. The computer seizure, ostensibly
occasioned by his republication of a stolen document, effectively
restrained him from publishing any more issues of Phrack.(FN5) Charges
against the young man later were quietly dropped, when it was discovered
that the "stolen property" -- the phone company document -- was available
from the phone company itself, and that it cost somewhat less that $20.
But the entire episode must have dampened his zeal to publish, for the
magazine no longer appears. See "Crime of the Century," supra, at 188;
Costikyan, supra, at 23-25; Levy, supra, at 52, 54; "United States v.
Zod," The Economist, Sept. 7, 1990, at 23; Leccese, supra, at 20; J.
Barlow, supra, at 10-11; Zachary, supra, at B4; Edelman, supra, at 39;
"Kapor Forms Group to Aid Hackers," supra, at 2B; "Computer Foundation
Planned," supra, at C4; O'Connor, supra, at 8F; Markoff, "U.S. Drops
Computer Case against Student," New York Times, July 28, 1990, at 9.
*On May 8, 1990(FN6), as part of "Operation Sun Devil," another
bulletin board, called "RIPCO," was raided. All of the equipment
necessary to run the bulletin board was seized. The RIPCO board had
operated since 1983, and it had accumulated extensive text files which
were accessible to its 600 users. No arrests were made, nor have any
charges been filed against the operators. But the board was shut down.
See, e.g., Thomas & Meyer, "Update on Ripco BBS and Dr. Ripco," 1 Computer
Underground Digest, #1.26, (Aug. 2, 1990) (available on the WELL, Apr. 12,
1991).
*Also frequent are instances where computers are seized incident
to an unrelated arrest. For example, on February 28, 1991, following an
arrest on charges of rape and battery, the Massachusetts state and local
police seized the suspect's computer equipment. The suspect reportedly
operated a 650-subscriber bulletin board called "BEN," which is described
as "geared largely to a gay/leather/S&M crowd." It is not clear what the
board's seizure is supposed to have accomplished, but the board is now
shut down, and the identities and messages of its users are in the hands
of the police. See Boyce, "Police Confiscate SM Files," Gay Community
News, Mar. 11-17, 1991, at 3.(FN7)
The Gulf between Law Enforcement
Procedure and the Constitution.
This small sampling of cases demonstrates the unequivocal
determination of the government to conduct investigative seizures of
entire computer systems, even when only a few files may be relevant to an
investigation or prosecution. Such seizures can have immediate and
catastrophic effects on computer users who have no connection to the
conduct being investigated. Offices cease to function; businesses can no
longer operate or service customers; bulletin boards and other forums are
shut down. As discussed below, it is no exaggeration to compare such
searches and seizures to the writs of assistance and general warrants
which the Constitution's framers found so odious, and which the Fourth
Amendment was designed to prevent.
Law enforcement agencies explain this practice by referring to
problems inherent in searching not only computers but any other storage
system: The searching officers cannot know precisely which part of the
system contains the data they seek. Furthermore, with the right sort of
elegant technology, computer files can be deleted at the push of a button.
According to this view, prudence suggests that the computer search will
be futile, unless the entire system is seized and removed, so that the
contents can be examined at leisure.
That means, of course, the government's leisure, not the user's.
It is cold comfort that the Fourth Amendment tolerates searches of the
property of people not suspected of criminal conduct, and that it even
permits searches in entirely noncriminal contexts.(FN8) People who are
the victims of such a seizure are naturally outraged. Where the object of
the seizure is a bulletin board, potentially thousands of users are
deprived of a forum in which to communicate, and their words (recorded in
the computer system housing the bulletin board) now are open to government
scrutiny. The seizure of a small business's computer system, especially
one involved in sales or research and development, effectively destroys
the business. In larger companies, when the investigation into the
operations of one department or subsidiary leads to a computer seizure,
the operations of the entire company can be crippled or frozen. And, of
course, the seizure of one or two pieces of computer equipment in a law
office effectively can constitute the seizure of all of the office's
client and billing files.
The practice of conducting these searches and seizures represents
the immense gulf that exists between law enforcement personnel and
magistrates, on the one hand, and sophisticated computer users, on the
other. As Mitchell Kapor and Michael Godwin point out in "Civil Liberties
Implications of Computer Searches and Seizures: Some Proposed Guidelines
for Magistrates who Issue Search Warrants," law enforcement personnel who
conduct computer seizures seem to focus exclusively on what *could* go
wrong in a computer-related situation.(FN9) The appropriate question
under the Fourth Amendment, which every magistrate should ask before
issuing a warrant, is not what could go wrong, but instead for what
adverse events probable cause has been shown.
It may be useful for prosecutors to know that "the data in the storage
device or media can be erased, replaced with other data, hidden,
encrypted, modified, misnamed, misrepresented, physically destroyed, or
otherwise made unusable." But this does not mean that the magistrate
should always find probable cause to believe that a particular computer
owner or operator has done so, and then authorize a highly intrusive and
disruptive seizure of a BBS [computer bulletin board system] so that
investigators can do a low-level search for hidden or encrypted data.
Reprinted in Proceedings: Fourth Annual Virus & Security Conference 426,
428 (1991), quoting D. Parker, Computer Crime: Criminal Justice Resource
Manual, at 68 (1989). What seems to have happened is that prosecutors and
law enforcement agents, in their zeal to avoid even the possibility that
evidence might be lost, have gone overboard and undertaken general
searches. As noted, the seizure of an entire computer system is
equivalent to seizing all of a person's hard copy files, or (in the case
of a bulletin board system or desktop publisher) seizing an entire
printing press.
Writs of Assistance, General Searches,
and the Fourth Amendment.
Even people of the so-called "framer's intent" school of
constitutional interpretation must concede that such seizures go too far.
"The use by government of the power of search and seizure as an adjunct to
a system for the suppression of objectionable publications is not new."
Marcus v. Search Warrant, 367 U.S. 717, 724 (1961). The Writs of
Assistance, which the British Crown issued to authorize searches for, and
seizures of, unlicensed publications, were an abomination to the American
colonists. See generally Stanford v. Texas, 379 U.S. 476, 481-82 (1965).
James Otis described the general search warrants used to enforce as "the
worst instrument of arbitrary power, the most destructive of English
liberty, and the fundamental principles of law, that ever was found in an
English law book." Id. at 481, citing Boyd v. United States, 116 U.S.
616, 625 (1886). The Writs authorized the search of anyone connected with
an unlawful or unlicensed publication, and the seizure of all of the
papers and documents of such people.
The Fourth Amendment has roots in the cases of Wilkes v. Wood, 19
How. St. Tr. 1153 (1763), and Entick v. Carrington, 19 How. St. Tr. 1029
(1765), in which free-thinking pamphleteers were arrested, and all of
their books and papers seized, because of their alleged publication of
seditious libels. The Wilkes case ended in liberty's favor, when the
Court of Common Pleas ordered the Secretary of State to pay Wilkes
damages. The Entick case resulted in Lord Camden's declaration that the
power to issue Writs of Assistance, and to conduct general searches, was
an unlawful offense to civilized notions of justice. In Lord Camden's
words,
this power so assumed by the Secretary of State is an execution upon all
of the party's papers, in the first instance. His house is rifled; his
most valuable secrets are taken out of his possession, before the paper
for which he is charged is found to be criminal by any competent
jurisdiction, and before he is convicted either of writing, publishing, or
being concerned in the paper.
19 How. St. Tr. at 1064, quoted in Stanford, supra, 379 U.S. 484.
Parliament later acted legislatively to declare general warrants to be
unlawful. Stanford, supra, 379 U.S. at 484, citing 16 Hansard's
Parliamentary History of England, at 207.
The Fourth Amendment was adopted a generation after Wilkes and
Entick, while the memory of the Crown's unrestrained searches of colonial
businesses for statutory violations was fresh. The amendment provides
that all warrants shall "particularly describ[e] the place to be searched,
and the ... things to be seized." In view of the Fourth Amendment's
history, and its explicit language, it is beyond serious dispute that the
Constitution prohibits wide-ranging exploratory searches. Neither can the
police rummage through a person's belongings sua sponte, nor can a
magistrate issue a warrant permitting a general and unlimited search.
E.g., Steagald v. United States, 451 U.S. 204, 220 (1980); Lo-Ji Sales,
Inc. v. New York, 442 U.S. 319, 325-26 (1979); see also Marshall v.
Barlow's, Inc., 436 U.S. 307, 312-13 (1978); Roaden v. Kentucky, 413 U.S.
496 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)("[T]he
specific evil is the 'general warrant' abhorred by the colonists, and the
problem is not that of an intrusion per se, but of a general, explanatory
rummaging in a person's belongings."); Stanford, supra, 379 U.S. at
485-86; Marcus, supra, 367 U.S. at 728-29. Instead, the Fourth Amendment
plainly directs that a search shall be lawful only when it is directed to
particular items for which probable cause is demonstrable.
The courts recognize that the First and Fourth Amendments grew
from the same historical source, for the struggle for press freedom was
energized by the struggle against the license to print, and against the
prior restraints imposed by the Crown to enforce the license. In the
Supreme Court's words,
The struggle for the freedom of the press was primarily directed against
the power of the licensor ... And the liberty of the press became
initially a right to publish "without a license what formerly could be
published only with one." While this freedom from previous restraint upon
publication cannot be regarded as exhausting the guaranty of liberty, the
prevention of that restraint was a leading purpose in the adoption of that
constitutional provision.
Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). The Supreme Court
commands that special care be taken when authorizing or reviewing a search
involving any entity engaged in the publication or dissemination of ideas.
"Freedom of the press" long has been interpreted broadly to
protect not only newspapers publishers and pamphleteers, e.g., Lovell,
supra, 303 U.S. at 452, but also motion pictures, Roaden, supra, 413 U.S.
496; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952); United
States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948), and even
computer bulletin boards, Legi-Tech v. Keiper, 766 F.2d 728, 734-35 (2d
Cir. 1985), from prior restraints and general searches. In order to avoid
prior restraints on speech, the particularity requirement of the Fourth
Amendment "is to be accorded the most scrupulous exactitude when the
`things [to be seized]' are books, and the basis for their seizure is the
ideas which they contain." Stanford, supra, 379 U.S.at 485, citing
Marcus, supra, 367 U.S. 717; A Quantity of Copies of Books v. Kansas, 378
U.S. 205 (1964).
The Need for Heightened Awareness
and New Limiting Rules.
The seizure of a computer's hard drive is the functional
equivalent of the seizure of all of the files in a small to medium size
law office, or all of the records of a small to medium size business.
After the seizure is accomplished, law enforcement personnel are able to
read virtually every word that had been printed in an attorney's files, or
to control the continued life of a business. It is critical that rules
and protocols be developed so that the scope of computer searches and
seizures are minimized.
Law enforcement professionals and attorneys must begin to realize
that just because it is convenient to seize a computer system (because the
system can consist of no more than a half dozen pieces of equipment), it
is not necessarily constitutional. Such seizures are tantamount to the
general searches and seizures which were generally regarded as the patent
abuses of tyranny when the Constitution was drafted.
Judges and magistrates who issue computer search warrants must
become more sensitive to the constitutional problems posed by authorizing
the seizure of entire computer systems. Because such warrants are
tantamount to the Writs of Assistance (which even the English courts under
George III condemned a generation before the United States Constitution
was adopted) the courts should be especially aware not only of Fourth
Amendment interests, but also of the First Amendment interests, when a
bulletin board or network equipment is seized. The Constitution imposes
"special restraints upon searches for and seizures of material arguably
protected by the First Amendment." Lo-Ji Sales, supra, 442 U.S. at 326
n.5.(FN10)
We all need to think more critically when dealing with the notion
that, unless entire computer systems are seized, electronic data will be
altered or destroyed. Magistrates should also require that parties
seeking a warrant similarly should demonstrate the probability that the
owner of the system is capable and willing to obliterate data within the
system during the short interval between presentation of the warrant and
commencement of the search.
To seize an entire computer system for the sake of a couple of
documents contained therein is inefficient, overly intrusive, and
potentially disastrous for the owner of the system. A better course would
be to have agents sophisticated in the use of computer equipment search
the system on-site, and to copy onto a disk the documents which motivated
the application for a warrant in the first place. Before authorizing the
seizure of entire computer systems, magistrates should require that the
applicant demonstrate probable cause for the belief that the entire system
is either completely dedicated to illegal activity, or permeated with
evidence of unlawful conduct. Wherever possible, the warrant should
authorize the seizure only of the relevant documents; if the documents
cannot be identified, then just the disks or tapes containing the relevant
documents should be taken. Too often there have been cases where a
computer operator's entire collection of disks has been seized. There is
no difference between this and ransacking a library.
Law enforcement professionals and magistrates also should be aware
of the fact that, where there are no disks, and the document to be seized
is likely to be found in the computer's central data storage (or "hard
disk"), the document easily can be copied onto a portable (or "floppy")
disk. The need to show authenticity should not justify the seizure of a
computer when disk or tape copies can be made. A document thus retrieved
still would be admissible evidence under Rule 1001(1), which defines
"writings" and "recordings" broadly to include "letters, words, or
numbers, or theirequivalent, set down by . . . magnetic impulse,
mechanical or electronic recording, or other form of data
compilation."(FN11)
It is technologically possible that a computer system is rigged
with a "booby trap or degausser," which is designed to obliterate data in
a computer when there has been unauthorized tampering. This possibility
can be invoked to justify all sorts of Fourth Amendment mischief,
including wholesale seizure and "no-knock" warrants. In fact, it is
highly unlikely that a computer system would be fitted with a such booby
trap, and this factor should not be regarded as common, but as highly
exceptional as the "Mission: Impossible" tape which self-destructs in five
seconds. When an officer posits a potential booby trap to justify a
highly intrusive and disruptive search and seizure, the courts should be
prepared to impose a heavy burden of proof on law enforcement officials
who claim that such devices are in place; law enforcement officials should
be prepared to meet such a burden.
It is worth noting, however, that in certain situations the
computer system itself is the means or instrumentality of a crime. Using
a network, software can be stolen, funds can be embezzled, and various
wire frauds can occur. See, e.g., J. McEwen, Dedicated Computer Crime
Units 1-5 (National Institute of Justice, 1989). But it is critical that
magistrates and law enforcement officials distinguish investigations where
the computer itself has been used to commit a crime, and where the
computer system merely is a channel of communication, like a telephone.
To seize a computer, because information related to a crime was merely
communicated through it, is tantamount to seizing telephones because two
co-conspirators spoke to each other over it. Proof of the crime can be
gotten by less intrusive means, and innocent third parties still may need
to use those telephones.
Law Enforcement and the
Particularity Requirement.
It is well established that search warrants should leave nothing
to the discretion of the executing officer; indiscriminate searches are
constitutionally intolerable. Indeed, any search warrant which authorizes
the search and seizure of items beyond those for which probable cause has
been demonstrated, is constitutionally defective. See, e.g., Lo-Ji Sales,
supra, 442 U.S. 319; Voss v. Bergsgaard, 774 F.2d 402, 404-05 (10th Cir.
1985)(warrant invalid where most of it authorized rummaging through files
and records for evidence pertaining to any federal crime, under the guise
of a criminal conspiracy investigation). It therefore is troubling that
law enforcement officers have so frequently resorted to the general
seizures of computer systems, which contain a myriad of different files,
when only particular files or categories of files are relevant. Even more
disturbing is the apparent insouciance with which some law enforcement
officers regard the seizure of entire systems of computer equipment; to
some officers, the particularity clause of the Fourth Amendment is not
even relevant. Illustrative is this statement by a Special Agent at the
FBI Academy:
[The Fourth Amendment "particularity"] provision requires that a warrant
authorize only a search of a specific place for specific named items.
Coupled with the probable cause requirement, this provision prevents
general searches by insuring that the warrant describes a discreet,
defined place to be searched, describes only items connected with criminal
activity for which probable cause has been established, and describes the
items so definitely that it removes from an officer executing the warrant
the discretion of determining which items are covered by the warrant and
which are not. It also provides a signal of when a search is at an end,
that is, when all items named in the warrant have been located and seized
or when all possible hiding places for items not located have been
explored. Since the "place to be searched" portion of the particularity
requirement has no special impact on computer searches, it will not be
discussed.
Sauls, "Raiding the Computer Room: Fourth Amendment Considerations (Part
I), 55 FBI Law Enforcement Bulletin 25, 29 (May 1986) (emphasis added).
Similarly, another Department of Justice publication sets forth, with
apparent approval, the following wide-ranging language in a "sample"
search warrant:
In the county of Baltimore, there is now property subject to seizure, as
such computers, keyboards, central processing units, external and/or
internal drives, internal and/or external storage devices such as magnetic
tapes and/or disks, terminals and/or video display unit and/or receiving
devices and peripheral equipment such as, but not limited to, printers,
automatic dialers, modems, acoustic couplers, and or [sic] direct line
couplers, peripheral interface boards and connecting cables or ribbons,
diaries, logs, and other records, correspondence, journals, ledgers
memoranda [sic], computer software, programs and source documentation,
computer logs, magnetic audio tapes and recorders used in the obtaining,
maintenance, and or [sic] dissemination of information obtained from the
official files and computers of the [sic] MCI Telecommunications, Inc. and
other evidence of the offense.
See, C. Connolly, Organizing for Computer Crime Investigation and
Prosecution at 81 (National Institute of Justice, 1989).
When computers are the object of the search, we see again the zeal
of the special investigating judges in the Court of High Commission under
King James I -- whose mission was "to inquire and search for . . . all
heretical, schismatical and seditious books, libels, and writings, and all
other books, pamphlets and portraitures offensive to the state or set
forth without sufficient and lawful authority in that behalf . . . and
their printing-presses themselves likewise to seize and so to order and
dispose of them . . . as they may not have to serve or be employed for any
such lawful use," Marcus, supra, 367 U.S. at 725-26, citing Pat. Roll, 9,
Jac. I, Pt. 18 & Jac. II, Pt. 15. The electronic bulletin board
appropriately should be viewed not as a weapon or burglary tool, but
instead as a First Amendment-protected institution, like the newspaper or
any public forum.(FN12) See generally, Jensen, An Electronic Soap
Box:Computer Bulletin Boards and the First Amendment, 39
Fed.Communications L.J. 217, 235P43, and authorities cited therein.
In all cases, consideration should be given to training
technologically sophisticated law enforcement officers, and having them
available to execute the computer searches. Furthermore, magistrates
should consider appointing similarly knowledgeable special masters to
supervise such searches. Such roles can be assumed by people who, though
technically literate, are not officers of the court or law enforcement
agency. See, e.g., Forro Precision, Inc. v. International Business
Machines Corp., 673 F.2d 1045, 1054 (9th Cir. 1982)(police search assisted
by IBM employee because warrants required that specific technical
documents be identified); see also, DeMassa v. Nunez, 747 F.2d 1283, 1285
(9th Cir. 1984)(court-appointed special master supervised search of law
office files, permitted seizure only of documents within scope of
warrant). Of course, the court should clearly explain to any appointed
special master the proper limits of the master's role in the search. See,
e.g., Lo-Ji Sales, supra, 442 U.S. at 321-24.
Privacy Rights of Third Parties
and Statutory Provisions.
In addition to the Constitution's basic guarantees, Congress and
various state legislatures have enacted additional privacy protections for
people who use computers, and for people whose information is stored in
them.
Magistrates and law enforcement officials should be cognizant of
the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. 2701-2711,
which protects the privacy of various electronic communications, including
e-mail. See, Kapor & Godwin, supra, at 431-32. Under the ECPA, a piece
of electronic mail cannot be reviewed or seized unless the law governing
warrants has been strictly complied with. See 18 U.S.C. 2703(a). The
language of this section seems to require that an order for the disclosure
of electronic mail must particularly describe the communications to be
sought; general rummaging and reviewing is not permitted. Id.(FN13)
Also important is the First Amendment Privacy Protection Act
("PPA"), 42 U.S.C. 2000aa et seq., which was enacted in response to the
Supreme Court's holding in Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
Protected under the PPA are documents and materials "possessed in
connection with a purpose to disseminate to the public a newspaper, book,
broadcast or similar form of public communication," 42 U.S.C. 2000aa(a),
which would seem to embrace electronic bulletin boards and
publicly-accessible computer networks. The PPA operates to prohibit
blanket searches and seizures of such entities, unless there exists
"probable cause to believe that the person possessing the materials has
committed a criminal offense to which the materials relate," and such
criminal offense does not consist of "the receipt, possession,
communication or withholding of such materials." 42 U.S.C. 2000aa(a)(1).
The practical effect of the PPA would seem to be to strictly limit
wholesale computer seizures where the systems are used for bulletin boards
or other general communications. In such situations, a seizure is
appropriate only where the system's operators are directly implicated in
unlawful activity. However, where the system has been used as a conduit
by others who are criminally motivated, but the operator is not involved,
the PPA would seem to require that no search take place, but that instead
a subpoena be issued for the relevant information.
It also is worth noting that the Attorney General has issued
guidelines under the PPA, governing the execution of search warrants where
highly confidential or personal information relating to innocent third
parties might fall into the hands of law enforcement authorities. See 28
C.F.R., Part 59. Under the guidelines, federal officials should "not use
search and seizure to obtain documentary materials in the possession of
disinterested third parties unless reliance on alternative means would
substantially jeopardize their availability. . . or usefulness," where
less obtrusive means of obtaining such materials are available. 28 C.F.R.
59.1, 59.4(a)(1). Under the PPA guidelines, "documentary materials"
include "materials upon which information is electronically or
magnetically recorded." 28 C.F.R. 59.2(c). Sensitive to the potential
for violating the privacy rights of innocent third parties, the Attorney
General's guidelines impose strict controls over search warrants executed
upon records in the custody of physicians, lawyers, or the clergy. 28
C.F.R. 29.4(b)(4). This heightened sensitivity to the privacy rights of
innocent third parties is reasonable, and should be extended to situations
where third parties other than patients, clients, and penitents are
affected by the documentary search and seizure. Considering the high
volume of communications which occur over many computer systems, and the
potential chilling effect that the government seizure of such
communications will have, magistrates and prosecutors appropriately should
impose similar limiting rules for computer seizures.
Ethical and Practical
Considerations for Attorneys.
Private defense attorneys and in-house corporate counsel also can
play a useful role in controlling the unbridled search and seizure of
computers.
They should become aware of how vulnerable their clients' computer
systems are to such searches, and of the potentially disastrous
consequences which would follow the seizure of a computer system. They
should be prepared to move for the return of seized computer equipment
under Rule 41(e), Fed.R.Crim.P., on the ground, inter alia, that the
particularity clause of the Fourth Amendment has been violated by such an
overbroad search and seizure. For the same reason, if the client is
indicted, computer searches and seizures provide fertile grounds for
suppression motions.(FN14)
Short of such disasters, however, counsel should be aware of some
of the ethical problems which computer filekeeping and communications
pose. Both the Constitution and the ethical precepts of the legal
profession protect client secrets. Although some details of the
attorney-client relationship may not be privileged -- for example, the
mere fact that the relationship exists, the identity of the client, and
the legal fees paid -- communications between counsel and client are
absolutely privileged, and attorney work-product enjoys presumptive
protection from disclosure.
The Code of Professional Responsibility prohibits the attorney
from revealing either "confidences" which a client has revealed for the
purpose of obtaining legal services, or "secrets" of the client's affairs
which, although not useful for the purpose of representation, might
embarrass the client or hurt business interests. See DR 4-101(A), (B).
The attorney-client privilege, limited by law to communications for the
purpose of seeking or rendering legal advice, is "more limited than the
ethical obligation of a lawyer to guard the confidences and the secrets of
his client." EC 4-4. The code similarly imposes on the attorney the duty
to exercise reasonable care to prevent employees, associates and all
others from disclosing client secrets and confidences. See DR 4-101(D).
The Model Rules of Professional Conduct also are protective of
client confidences. Rule 1.1 enjoins the lawyer not to reveal
"information relating to the representation of a client." Although this
language seems to eliminate from the attorney's duties the protection of
information which, though not essential to representation, may prejudice
the client's non-legal interests, the Comment to Rule 1.1 seems to
rehabilitate the protection of non-legal client secrets. The Comment
explains that attorney-client confidentiality is necessary for the client
"to communicate fully and frankly with the lawyer even as to embarrassing
or legally damaging subject matter." (Emphasis added.) The Comment
distinguishes Rule 1.6 from DR 4-101, and it holds that the Rule's
application to information "relating to the representation" reaches
morebroadly than the Code's protection of information "gained in" the
relationship which the client has requested to be kept confidential.
In-house counsel should be certain that confidential legal files
are segregated from general corporate files. Other attorneys should make
sure that their clients similarly segregate such files on separate disks.
If possible, and especially when a particularly sensitive investigation is
underway, in-house counsel should detach its computer system from the
network upon which the rest of the company's computers operate. Clients
should be instructed to store privileged information to "floppy" disks,
and that such information should be erased completely from the computer's
memory or "hard" disks.
Counsel need to be prepared to convince a court that certain
communications were made in complete confidence. See, e.g., S.E.C. v.
Gulf & Western Industries, Inc., 518 F. Supp. 675 (D.D.C. 1981); In re
Ampicillin Antitrust Litigation, 81 F.R.D. 377 (D.D.C. 1978). It will be
harder to make this showing if it should turn out that privileged files
were accessible to anyone in the corporation. Instead, the expectation of
confidentiality should be clearly apparent from the demonstrable conduct
of the party asserting a privilege. Gulf & Western, supra, 518 F.Supp. at
682; see also, Upjohn Co. v. United States, 449 U.S. 383, 387 (1981)
(counsel should be able to show that employee was aware that
communications were for the purpose of legal advice when made).
Similarly, counsel should make sure that employees understand that
confidential communications should not be placed over a generally
accessible office computer network, and that legal communications should
be removed and segregated from parts of the system which are generally
accessible. Under certain circumstances, when privileged documents are
left in computer files where others can view them, confidentiality may
have been constructively waived. "[O]nce the privilege exists
the corporate client must be diligent in its intra-corporate
confidentiality." J. Gergacz, Attorney-Corporate Client Privilege
3.02[2][d][ii](1987) (FN15)
There is only so much counsel can do, however, to minimize the
possibility that privileged information is seized. Obviously, it would be
wasteful to restructure an entire filing system in seemingly paranoid
anticipation of a general search. But counsel should insure that the
client takes deliberate and painstaking precautions to keep its
electronically recorded confidential communications from prying eyes
within the office, as well as from without.
It is important to note that the law is far from settled on the
issue of whether privileged materials which have been abandoned or stolen
lose their protective character. Older authorities hold that all
involuntary disclosures of information remove the privilege. 8 Wigmore,
Evidence, sec. 2326 (McNaughton Rev. Ed. 1961). The modern view is to the
contrary. See, e.g., J. Gergacz, supra, 5.03[2][e]; Suburban Sew 'N
Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254, 260 (N.D.Ill. 1981);
see also Bower v. Weisman, 669 F. Supp. 602, 606 (S.D.N.Y. 1987). But it
is safe to say that it does not help a client's case to have filed
confidential communications promiscuously in the company's computer
network. And disclosure of communications beyond employees who "need to
know" may constitute a waiver of confidentiality. See, J. Gergacz, supra,
at 5.03[3], citing James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 142
(D.Del. 1982). As John Gergacz observes,
Courts which have strongly emphasized the confidentiality characterization
of the waiver doctrine may be less amenable to corporate policies that do
not strongly limit access by non-essential employees to the privileged
communications. Even so, corporate counsel should take care in preserving
the confidentiality of the privileged communications within the
organization. Privileged documents should be circulated only to those
corporate members who need to know. The broader the circulation list, the
less distinguishable corporate treatment of confidential communications
will be from general firm memos. In addition, . . . separate files should
be kept for privileged communications and those that are circulated should
be kept in separately marked . . . folders so as to minimize commingling
of privileged documents with nonPprivileged, even within the same filing
system. Finally, the corporation should have and follow a policy of
authorized and unauthorized access to various files.
J. Gergacz Attorney-Corporate Client Privilege, supra, 5.03[3].
Conclusion.
This suggestive (but far from exhaustive) review is a plea to
judges and magistrates, prosecutors and defense attorneys, in-house and
independent counsel, who are or may be involved in the criminal process --
to study the constitutional, ethical, strategic, and business implications
of the new computer technology more closely. Computers have essentially
miniaturized the office place; but they pose the concomitant danger of the
revival of the Writ of Assistance. True, computers enable us to easily
store, and more easily to retrieve, a wide variety of information using a
very small "file cabinet"; but one should resist the temptation to pack
everything into one system. The courts and prosecutors should be
sensitive to how close indiscriminate computer seizures come to the police
practices which precipitated a revolution. And counsel should be
sensitive to the possibility that the poorly considered use of computer
technology can erode the client's constitutional rights and privileges.
We should be alert to the computer's dangers as well as to its undeniable
convenience and other benefits.
FN1. Mr. Silverglate is a partner, and Mr. Viles an associate, at the
Boston (Mass.) law firm of Silverglate & Good. The authors are counsel to
the Electronic Frontier Foundation (EFF), which is described in this
paper, and which is involved in a few of the matters discussed here. The
authors gratefully acknowledge the help of Mitchell Kapor and Michael
Godwin of EFF, as well as of associate Sharon Beckman and legal assistants
Chauncey Wood and Gia Barresi of Silverglate & Good.
FN2. John Perry Barlow, one of the founders of the Electronic Frontier
Foundation, explains the meaning of "cyberspace" best -- it is the
totality of interconnected computer networks, and the activities taking
place on them:
The WELL ... is an example of the latest thing in frontier
villages, the computer bulletin board. In this kind of small town, Main
Street is a minicomputer to which ... as many as 64 microcomputers may be
connected at one time by phone lines and ... modems.
In this silent world, all conversation is typed. To enter it, one
forsakes both body and place and becomes a thing of words alone. You can
see what your neighbors are saying (or recently said) ... . Town meetings
are continuous and discussions rage on everything from sexual kinks to
depreciation schedules.
There are thousands of these nodes in the United States, ranging
from PC clone hamlets of a few users to mainframe metros like CompuServe,
with its 550,000 subscribers. They are used by corporations to transmit
memoranda and spreadsheets, universities to disseminate research, and a
multitude of factions, from apiarists to Zoroastrians, for purposes unique
to each.
Whether by one telephonic tendril or millions, they are all
connected to one another. Collectively, they form what their inhabitants
call the Net. It extends across the immense region of electron states,
microwaves, magnetic fields, light pulses and thought which sci-fi writer
William Gibson named Cyberspace.
J. Barlow, Crime and Puzzlement, 2P3 (1990)(emphasis in original). For
other descriptions of the range of topics open for discussion on the
networks, see Walker, "American Diary: In Thrall to the Data Bank,"
Manchester Guardian Weekly, Mar. 24, 1991, at 24, and Leccese, supra, at
18.
FN3. As of this writing, the scope of "Operation Sun Devil" is unclear.
Although many wholesale seizures of computer equipment have occurred over
the past year and a half, executed by teams of federal and state agents,
some law enforcement officers specifically have disavowed that their
particular police action was a part of "Sun Devil." For example,
"[f]ederal officials said that the raid on Steve Jackson Games [see infra]
was not part of Operation Sun Devil." Lewis, "Can Invaders Be Stopped but
Civil Liberties Upheld?," New York Times, Sept. 9, 1990, at 12F.
FN4. "GURPS" is an acronym for "Generic Universal Role-Playing System."
FN5 It is instructive to compare the experience of Phrack's young
publisher with the treatment accorded other well-known publishers of
pilfered documents. See New York Times v. United States, 403 U.S. 713
(1971).
FN6 This apparently was the climactic day for the "Sun Devil"
investigations. Barlow writes:
One May 8, 1990, Operation Sun Devil, heretofore an apparently random and
nameless trickle of Secret Service actions, swept down on the Legion of
Doom and its ilk like a bureaucratic tsunami. On that day, the Secret
Service served 27 search warrants in 14 cities from Plano, Texas to New
York, New York. ...
In a press release following the sweep, the Secret Service boasted
having shut down numerous computer bulletin boards, confiscated 40
computers, and seized 23,000 disks. They noted in their statement that
"the conceivable criminal violations of this operation have serious
implications for the health and welfare of all individuals, corporations,
and United States Government agencies relying on computers and telephones
to communicate." ...
[T]he deliciously ironic truth is that, aside from [a] 3-page
Bell South document, the hackers had neither removed nor damaged anyone's
data. Operation Sun Devil, on the other hand, had "serious implications"
for a number of folks who relied on "computers and telephones to
communicate." They lost the equivalent of about 5.4 million pages of
information. Not to mention a few computers and telephones.
J. Barlow, supra, at 14. Similar numbers were reported in Leccese,
"Hackers under Attack," supra, at 9.
FN7. It would be impossible to exaggerate the frequency with which
computer information banks containing private information of third parties
are seized, ostensibly in search of criminal evidence. A greenhouse owner
in Indiana, charged with aiding and abetting in the cultivation of
marijuana, had his computer equipment seized. More bizarre is the story
of the nonprofit California cryogenics organization, whose computer
equipment and cryogenics-related bulletin board were seized and shut down,
in the course of a coroner's office investigation into the whereabouts of
a missing human head. The organization reportedly initiated litigation
under the Electronic Communications Privacy Act, 18 U.S.C. 2701 et seq.
(discussed infra), and at this writing it appears that the case was
settled after some proceedings. See Meeks, "The Case of the Missing Head
and the Missing BBS" (available on the WELL, Apr. 12, 1991)(story reported
as originating from BIX's Microbytes newswire, no date given).
FN8. See e.g., Donovan v. Dewey, 452 U.S. 595 (1981); Zurcher v. Stanford
Daily, 436 U.S. 547, 554-55 (1978); United States v. Kahn, 415 U.S. 143,
157 (1974); See v. City of Seattle, 387 U.S. 541 (1967); Camara v.
Municipal Court, 387 U.S. 523 (1967).
FN9 See Proceedings: Fourth Annual Computer Virus & Security Conference
426P42 (1991). Kapor and Godwin are, respectively, the President and
Staff Counsel of the Electronic Frontier Foundation, a civil liberties
group headquartered in Cambridge, Massachusetts, dedicated to "civilizing
the electronic frontier." It "aims to lobby for laws to facilitate public
computer networks, and to help in the legal defense of those it considers
unjustly charged with computer crimes." See Dyson, "Commentary: Hackers'
Rights," Forbes, Jan. 7, 1991, at 288. As part of EFF's work, it has
undertaken litigation efforts on behalf of some of the parties described
above who have been subjected to computer searches and seizures (including
Steve Jackson Games and the publisher of Phrack). EFF also has intervened
as amicus curiae in other cases implicating the constitutional liberties
of bulletin board operators.
FN10. Similarly, as discussed below, courts and attorneys should be
sensitive to the interests protected by the Fifth and Sixth Amendments,
when the equipment to be seized potentially contains attorney-client
communications and legal work-product.
FN11 Furthermore, Rule 1001(3) holds that an "original" can be "any
print-out or other output readable by sight [and] shown to reflect the
data accurately," which has been taken from a "computer or similar
device." In view of this, it would seem that the Rules of Evidence have
eliminated the need for many evidentiary disputes over the admissibility
of a transcribed disk (as a supposed "duplicate") in lieu of the entire
"original" computer system's data storage.
FN12. Plainly, the decisional law has given newspapers and books stronger
and surer protection against government intrusion than it has given to the
broadcast media. Compare, e.g., Minneapolis Star and Tribune v. C.I.R.,
460 U.S. 575 (1983); Near v. Minnesota, 283 U.S. 697 (1931), with F.C.C.
v. League of Women Voters, 468 U.S. 364 (1984); Red Lion Broadcasting v.
F.C.C., 395 U.S. 367 (1969). The courts' tolerance for government
interference in broadcasting finds its principal justification in the
notion that "[u]nlike other modes of expression, radio inherently is not
available to all. That is its unique characteristic, and that is why,
unlike other modes of expression, it is subject to government regulation."
National Broadcasting Co. v. United States, 319 U.S. 190, 226 (1943). The
N.B.C. Court's observation may have been accurate in the 1940's but it is
not so today. In the past fifty years we have witnessed a dizzying
proliferation of electronic channels of communication. It would be a
mistake to assume that there is a scarcity of modes of expression on the
computer networks, and to consequently limit speech in those forums. See
generally Peretti, "Computer Publication and the First Amendment," 3
Computer Underground Digest #3.09 (Feb. 28, 1991)(available on the WELL
Apr. 12, 1991).
FN13. It should be pointed out, however, that the ECPA also sets up as
defenses to civil actions under the Act, "good faith reliance" on warrants
or court orders. See 18 U.S.C. 2707(d)(1).
FN14. Although the seizure of law office computer systems has not yet
caught on in this country, it seems that it is a only a matter of time
before it does. In the past decade, we have witnessed wide-ranging
searches through attorneys' client files. E.g., DeMassa v. Nunez, 747
F.2d 1283 (1984). Other nations already have extended this procedure to
electronic files. One example is the case of South African anti-apartheid
attorney Yunus Mahomed. According to reports, his professional activities
were "directly disrupted by police searches of his office and home in
January and again in February 1989. On the first occasion computer disks
were removed and later returned. During the second raid, the computer was
removed. Mr. Mahomed obtained an injunction restraining police from
tampering or retrieving information from the computer unless he is
present." "Lawyer to Lawyer Network," March 1989 (appeal issued by
Lawyers Committee for Human Rights).
FN15. See also Baltica-Skandinavia Insurance Co. v. Booth, Potter, Seal &
Co., No. 86-1967, 1987 U.S. Dist. LEXIS 9371 slip op. (E.D.Pa. Oct. 15,
1987), cited in J. Gergacz, supra, at 36 (Mar. 1989 Supp.)(court decided
that document intended to remain confidential when it had been filed
separately with other privileged documents, file was specially marked, and
staff was instructed concerning its confidentiality); Allen v. Burns Fry,
Ltd., No. 83 C 2915, 1987 U.S.Dist. LEXIS 4777, slip op. (N.D.Ill. June 8,
1987), cited in J. Gergacz, supra, at 36 (same). Generally, in cases
where the client is a corporation, the courts seem to be most willing to
honor the confidential nature of documents which both the attorney and
client took explicit and energetic measures to guard. Compare Lois
Sportswear U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y.
1985)("Because the client's intent determines whether the communication
was confidential to begin with, such intent must be negated before the
confidentiality can be deemed to have been destroyed and the privilege
surrendered.").
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