Courting Chaos: Conflicting Guidance from Courts Highlights for Clearer Rules to Govern the Search and Seizure of Digital Evidence


By Lily R. Robinton
Original Article

In this article, Lily Robinton argues the rules for search and seizure of digital information created by the courts lack clarity, consistency and effectiveness, and that laws specifically governing the search of digital information are required to cure these problems.

Robinton relies on scholarship illustrating how the evolution of search and seizure laws by the courts has been focused on physical evidence, not digital, including Orin Kerr’s “Digital Evidence and the New Criminal Procedure”. Robinton uses this scholarship to highlight the complications created by digital evidence and to create a foundation that the rules governing search and seizure of digital information are lacking because the laws have been tailored to physical evidence. Robinton also includes scholarship arguing that the “plain view” doctrine of search and seizure law should not apply to digital evidence, including RayMing Chang’s “Why the Plain View Doctrine Should Not Apply To Digital Evidence”. Although Robinton agrees that search and seizure of digital evidence must be narrower than that of physical evidence, she is critical of a complete abolition of the “plain view” doctrine in the digital context. Robinton focuses on the important functions the “plain view” doctrine serves for digital evidence including prevention of heinous crimes and the forfeiture of certain evidence. Robinton relies on the “Cary-Winick” approach to search and seizure of digital evidence from David Ziff’s “Fourth Amendment Limitations on the Execution of Computer Searches Conducted Pursuant to a Warrant” in her argument, however she does not find it to be a sufficient solution on its own, but she combines its features with other approaches.

Robinton argues legislatures should enact laws specifically created for digital search and seizure, instead of merely applying the current search and seizure laws which are more fitting for physical evidence. She proposes a rule that would strike balance between privacy and justice. This three part rule provides more restrictions than traditional search and seizure laws, but is less restrictive than the “Carey-Winick” approach. Robinton applies this rule to hypothetical scenarios where the issues of digital search and seizure would arise.

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