How Far Can the Government Go to Search Your Computer? The Fourth Amendment in the Digital Era

Finally…a case that is not connected to the Galleon insider trading investigation, or SAC Capital or, any of the usual white-collar suspects.  In Galpin, the Second Circuit addressed the scope of the government’s search of a defendant’s computer hard drive, including whether the plain view doctrine allows for the use of anything found on the hard drive.

Mr. Galpin entered a conditional plea to several child pornography offenses and was sentenced to over 47 years in prison. I’m not defending his conduct, of course. But being a defense lawyer means that my job is to make sure the government follows the rules too. Here, the Second Circuit seemed to understand that the tactics used by the government to secure Mr. Galpin’s conviction are dubious at best. 

The Search Warrant and Its Execution

Mr. Galpin challenged the district court’s denial of his motion to suppress evidence found on his computer, digital cameras and other storage devices when the government executed a search warrant. The warrant was incredibly broad, allowing a search for evidence that

will constitute, substantiate or support violations of NYS Corrections Law, . . . NYS Penal Law or Federal Statutes.

In short, the search warrant let the government search for whatever it damn well wanted.

At the evidentiary hearing on the suppression motion, the computer forensics analyst who searched Mr. Galpin’s computer explained that she first conducted a search using search terms and reviewed those documents. But she also looked at “the entire hard drive,” including every image, text file and video file on it. She explained that “the only way to determine the content” of a file “is to open the file” and review it.

The Lower Court’s Holding—Evidence Is Not Suppressed

The district court found that the government had probable cause only to search for evidence of Mr. Galpin’s violation of sex offender registration laws.  It also concluded that the discovery of the other evidence of child pornography was “inadvertent,” because the analyst had to review every file to execute even a properly-limited warrant. In addition, the evidence fell under the plain view doctrine because its incriminating nature was apparent on its face.

The Second Circuit—We Need More Information

A panel of the Second Circuit (Chief Judge Jacobs, Judge Winter and district court Judge Swain) heard the case.

The court first explained that when

the property to be searched is a computer hard drive, the particularity requirement [of search warrants] assumes even greater importance . . .  [because a] hard drive [is] akin to a residence in terms of the scope and quantity of the private information it may contain.

As a result, the “potential for privacy violations occasioned by an unbridled, exploratory search of a hard drive is enormous.”

So far, in a word . . . yay!

But, as in any criminal case, the exceptions to constitutional protections threaten to swallow them. In the end, the court reversed and remanded the case to the district court to make additional findings on three points.

First, although the Second Circuit agreed with the lower court that the search warrant was impermissibly broad, it required the lower court to make findings on whether the warrant was severable to the registration offenses alone.

Second, and more important, the court addressed the government’s argument because that it had to review everything on the hard drive, the plain view doctrine allowed for use of the evidence found during the warrant’s execution.

The court noted that there was “little indication” that the analyst’s search “was even directed—much less properly limited—to those files that would substantiate a registration violation.”  So, on remand, the lower court was directed to

determine whether a search limited to evidence of a registration violation would have necessitated the opening of image files or the playing of video files.

Third, if neither the severability nor the plain view doctrine applied, the lower court was directed to determine whether the “good faith” exception to the warrant requirement could be applied.

The Galpin case can be compared against a case in the Fourth Circuit, United States v. Williams, 592 F.3d 511 (4th Cir. 2010).  There, the court of appeals held that the plain view doctrine applied when the government had probable cause to search for something on a hard drive, and, in the course of that search, came across evidence of other illegal conduct. But also check out United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc), where the Ninth Circuit suggested that magistrate judges should take steps to limit these types of searches such as by requiring some assessment of the feasibility of seizing only for responsive information.

To be fair, the Second Circuit in Galpin seemed to understand the concerns raised by allowing a warrant for anything on a hard drive to permit the government to open every file. That said, until the lower courts have the chance to apply the court’s reasoning to real-life situations, we won’t know whether the Galpin opinion is a victory for the Fourth Amendment or another step in its demise.

This entry was posted in Appeal, Plea Agreement, Search warrant. Bookmark the permalink.

One Response to How Far Can the Government Go to Search Your Computer? The Fourth Amendment in the Digital Era

  1. Pingback: The Government Cannot Keep Seized Evidence Forever: Second Circuit Holds that Seized Electronic Data Cannot Be Held Indefinitelys Decision on Search Warrants | Grand Jury Target

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