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Legal Affairs Debate Club:
The first round of this week's Legal Affairs Debate Club has been posted, and is available here. As I mentioned a few days ago, the topic this week is how the Fourth Amendment should apply to searches of computer hard drives, and the debaters are Professor Susan Brenner and myself.
Eh Nonymous (mail) (www):
Nice serve, Orin, and my, what a hot return Prof. Brenner has.

I agree with her: the wholesale duplication of a hard drive is a much greater risk to the data on my computer than is permission to go in with a given, targeted, limited search for particular (unencrypted?) files or contents of files.

Unlike a suitcase, a hard drive can be "duped" - a complete and identical copy made- without depriving you of your possessions. But what, then, of your privacy, identity, saved instant messenger conversations, passwords, pornography, protected communications and most intimate details? A letter must be photocopied; a suitcase must be rummaged, emptied, searched, sorted, scanned, x-rayed, or sniffed. But a hard-drive... anything a mathematician or computer wizard can dream up, they could do to an image of your hard drive.

It's the difference between a house search and the high-tech scanners at issue in the hot-light-scanner case.

And unfortunately, a wrong answer is as easy as in the (incredibly short-sighted, over-trusting) dog sniff cases.
8.8.2005 4:26pm
The Dude:
I think the "strange" part of computer search and seizure questions is the fact that searching a computer hard drive, even under the guise of a warrant, is as much voodoo art as it is science.

While it seems that there would be a simple way to determine if The Dude's computer contains any evidence of an illegal drug shipping ring from Mexico, the fact of the matter is, if there is a spreadsheet detailing suppliers, customers, and shipment dates, it could have the extension .JPG and have a file name remniscent of child porn.

While I'm not so confident as to say that there won't ever be a method of only searching a hard drive for specific terms and being 100% sure you're obtaining all of the pertinent results, for today, there is hardly anything like a reliable limited search of a computer hard drive.

It is in this sense that a computer search is the most invasive of a fourth amendment search and seizusre.
8.8.2005 6:21pm