The Legal Intelligencer, Will Technology Change the Interpretation of the Fourth Amendment?

The Legal Intelligencer, Will Technology Change the Interpretation of the Fourth Amendment? by Leonard Deutchman:

In United States v. Ganias, 824 F.3d 199 (2nd Cir. 2016), cert. denied, No. 16-263 (S.Ct. Dec. 5), the U.S. Court of Appeals for the Second Circuit, en banc, reversed a panel opinion that had vacated the defendant’s criminal conviction for two counts of tax evasion on the ground that the search of the defendant’s computers violated the Fourth Amendment. The search had been conducted upon forensic images (often referred to as “mirror” images) of hard drives of the defendant’s computers, which drives had been imaged in 2003 as part of execution of a search warrant for evidence of one crime, then re-searched in 2006 as part of execution of a second search warrant for evidence of the tax evasion charges. While I have no dispute with the outcome of the litigation, the Second Circuit’s reasoning is highly troubling, as it found a Fourth Amendment violation in the creation and retention of forensic images, which is by far the best and most common way of conducting searches of digital instruments, and one upon which all parties rely to offer or challenge evidence found on those instruments and introduced in court. While it is understandable that the U.S. Supreme Court would deny certiorari in a matter where the holding was proper, because that holding was based upon the Second Circuit’s finding of a “good faith” exception means that the court forewent the opportunity to respond to and defeat the defendant’s challenge to the creation of forensic images, thus leaving the constitutionality of the practice in limbo. In this month’s article, I discuss the case. Next week, in part two, I’ll discuss the meaning and importance of forensic imaging, and the Second Circuit’s take on all of it.