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The Fourth Amendment says that warrants must state where the government will search and what evidence the government will seize. In recent years, some federal magistrate judges, when asked to sign warrants for computer searches, have began imposing a new third requirement: limits on how computers can be searched. As I wrote in this 2010 article, I dont think such limits are permissible. In my view, questions about how a computer is searched must be reviewed after the search in adversarial litigation challenging its reasonableness, rather than guessed at beforehand and written into the warrant by an individual magistrate judge.

At present, however, there isnt much in the way of caselaw on which side is right. Theres a ton of circuit precedent saying that search protocols are not required. But theres only one appellate case on whether they are permitted, a Vermont Supreme Court case which concluded that that some restrictions are permitted but others arent. No Article III court has yet ruled on the question.

In light of that ongoing debate, I thought I would flag a recent opinion by Magistrate Judge David Waxse in Kansas, In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office. The opinion rejects an application for a warrant to search cell phones in DEA custody because the investigators refused to provide the court with a search protocol. If the government seeks review, it may generate the first Article III precedent that grapples with whether such restrictions are permitted. (The case happens to involve cell phones, but there is no Fourth Amendment difference between a cell phone search and any other computer search.)

Waxses opinion is pretty unusual. It includes a long section titled Applying Constitutional Protections in the Digital Era that offers an interesting theoretical account of the role of precedent. According to Waxse, magistrate judges should not be overly beholden to Supreme Court precedent when technology changes:

With technological developments moving at such a rapid pace, Supreme Court precedent is and will inevitably continue to be absent with regard to many issues district courts encounter. As a result, an observable gap has arisen between the well-established rules lower courts have and the ones they need in the realm of technology. Courts cannot, however, allow the existence of that gap to infiltrate their decisions in a way that compromises the integrity and objectives of the Fourth Amendment. . . . The danger, of course, is that courts will rely on inapt analogical reasoning and outdated precedent to reach their decisions. To avoid this potential pitfall, courts must be aware of the danger and strive to avoid it by resisting the temptation to rationalize the application of ill-fitting precedent to circumstances.

Judge Waxse then concludes, relying heavily on the reasoning of the Vermont Supreme Court, that he has the authority to deny applications for computer warrants unless they detail how the search will be executed. Although the Supreme Court has indicated that the reasonableness of a warrant execution should be reviewed ex post, not ex ante, Waxse concludes that its more efficient to have the review occur ex ante:

The fact of the matter is that a court is attempting to avoid entirely the harm that ex post remedies are meant to assuage. By only deciding reasonableness of the governments actions ex post, the government not only possesses a substantial portion of an individuals private life, but it also fails to prevent a person from having to defend against subsequent unreasonable searches stemming from the initial search and seizure. Requiring search protocol in a warrant allows the court to more effectively fulfill its duty to render, as the Supreme Court put it, a deliberate, impartial judgment as to the constitutionality of the proposed search, thus avoiding the need for ex post remedies resulting from an unconstitutional search.

He concludes:

If the Court were to authorize this warrant, it would be contradicting the manifest purpose of the Fourth Amendment particularity requirement, which is to prevent general searches. Given the substantial amount of data collected by the government upon searching or seizing a cell phone, as discussed in Riley, requesting an unrestricted search is tantamount to requesting disclosure of a vast array of intimate details of an individuals private life. For the reasons discussed in this opinion, to issue this warrant would swing the balance between an individuals right to privacy and the governments ability to effectively investigate and prosecute crimes too far in favor of the government.

Accordingly, the Court again finds that an explanation of the governments search techniques is being required in order to determine whether the government is executing its search in both good faith and in compliance with the Fourth Amendment. The Court does not believe that this request will overburden the government. In fact, in Riley, the government advocated and it can be concluded that the Supreme Court endorsed the implementation of search protocols: Alternatively, the Government proposes that law enforcement agencies develop protocols to address concerns raised by cloud computing. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

See the rest here:
Volokh Conspiracy: No cell phone warrants without search protocols, magistrate judge rules