Searching and Seizing Computers

As computers and telecommunications explode into the next century, prosecutors and agents have begun to confront new kinds of problems. These Guidelines illustrate some of the ways in which searching a computer is different from searching a desk, a file cabinet, or an automobile. For example, when prosecutors must interpret Rule 41 (which requires that the government obtain a search warrant in the district where the property to be searched is “located”), applying it to searches of physical items is usually uncomplicated. But when they must try to “locate” electronic data, the discussion can quickly become more¬†metaphysical than physical. Even so, it is important to remember throughout the process that as dazzling and confounding as these new-age searches and seizures may be, they are in many essential ways just like all other searches. The cause must be just as probable; the description of items, just as particular. The standard investigative techniques that work in other cases (like finding witnesses and informants) are just as valuable in computer cases.

The evidence that seals a case may not be on the hardware or software, but in an old-fashioned form: phone bills, notes in the margins of manuals, or letters in a drawer. The sections that follow are an integration of many legal sources, practical experiences, and philosophical points of view. We have often had to extrapolate from existing law or policies to try to strike old balances in new areas. We have done our best to anticipate the questions ahead from the data available today. Even so, we recognize that rapid advances in computer and telecommunications technologies may require that we revisit these Guidelines,~perhaps in the near future. In the meantime, as law struggles to catch up to technology, it is important to remember that computer cases are just like all others in one respect at least: under all the “facts and circumstances,” there is no substitute for reasonable judgment.

You can download this module in Searching and Seizing Computer


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