I’ve blogged before about the fascinating and important issue of whether magistrate judges have the power to impose ex ante restrictions on how computer searches will be executed as a condition of issuing warrants to search computers. As regular readers know, my view is that they don’t: I explained why in my recent article, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010). Just this morning, the Vermont Supreme Court held oral argument in a case squarely addressing that question. I believe the Vermont case will be the first appellate decision to take on these important Fourth Amendment issues, so I thought I would blog a bit about it.
In this case, Vermont police applied for a warrant to enter a home and search the suspect’s computer for evidence of identity fraud. The judge agreed that the government established probable cause, and he signed the warrant. However, the judge imposed ten individually-numbered restrictions detailing how the police had to execute the warrant and what rights they retained going forward. Several but not all of the restrictions were taken from Judge Kozinski’s concurrence in a recent computer search and seizure case. For example, the magistrate forbade the police from relying on the plain view exception to use any evidence outside the scope of the warrant that the police might found. The judge also ruled that the police could not use “sophisticated hashing tools” and “similar tools” to search the computer without first obtaining special permission from the magistrate judge.
The police searched the home and seized the suspect’s computer, but did not search it. Instead, the state filed a motion for relief in the Vermont Supreme Court challenging the restrictions. The state’s goal is to have the state Supreme Court strike down the ex ante restrictions so the state can search the computer and leave the constitutionality of its search to ex post challenges. The state’s brief is here, and it argues that ex ante restrictions are constitutionally improper and pragmatically unwise. The Office of the Defender General filed an amicus brief, which you can read here, arguing that state law gives this power to magistrate judges and that such restrictions are proper under the Fourth Amendment. The Vermont chapter of the ACLU (joined by the EFF and other parts of the ACLU) also filed an amicus brief, which you can read here, which points out that many magistrate judges have in fact imposed such restrictions and also argues that the restrictions do not violate the Fourth Amendment in light of the special concerns of computer search and seizure.
My recent article contains my view of the legal questions here — or at least the federal legal questions — so I’ll just offer two quick comments on the pending case. First, some of the briefing by the amici argues that computers require special rules because of the invasiveness of computer searches. I basically agree with that, and have argued at length that the plain view exception should not apply to computer searches. But that’s a question of what reasonableness requires, not who should determine what reasonableness requires and when it should be determined. The question of whether magistrates have the power to devise and impose ex ante restrictions is about the latter question, not the former one.
Second, some of the briefing talks about my own scholarship in this area, and I wanted to make a brief comment about the ACLU’s reliance on Paul Ohm’s online response to my Virginia Law Review article on ex ante restrictions. In my view, the problem with Ohm’s response is that its reasoning conflicts with the Supreme Court’s decision in Grubbs. Grubbs rejected the idea that courts can impose ex ante restrictions on how warrants are executed because those restrictions further the same goals as probable cause and particularity — namely, trying to limit the scope of searches pursuant to warrants. I think Ohm’s position is based on the same reasoning that the Supreme Court rejected unanimously in Grubbs. In light of Grubbs, I think courts have to carefully distinguish particularity and probable cause from ex ante restrictions on how warrants are executed. The Fourth Amendment requires judges to condition warrants on the former, but it imposes no power on judges to refuse to issue warrants based on the latter.