New Orin Kerr article on computer search protocols in the Ninth Circuit

Orin Kerr on Volokh Conspiracy: Significant Test Case in Seattle on Lawfulness of Ex Ante Search Limitations in Computer Warrants about a February opinion unsealed in Seattle about protocol for computer searches: In The Matter Of The United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius applying the Ninth Circuit’s Comprehensive Drug Testing case:

It didn’t take long, it seems. Recently, Magistrate Judge James Donohue in Seattle unsealed an opinion he handed down on February 11 denying a warrant application to search the computers of a suspect, Edward Cunnius. I have posted the opinion here: In The Matter Of The United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius. Judge Donohue agreed that the government had established probable cause to search Cunnius’s computers for evidence of his selling counterfeit Microsoft software on Craigslist. Although the opinion isn’t particularly clear on this, he doesn’t appear to argue that the warrant fails the particularity requirement. However, Judge Donohue denied the warrant application because the government refused to go along with two restrictions from Judge Kozinski’s concurrence in CDT. First, Judge Donohue wanted the government to promise it would not rely on the Fourth Amendment’s “plain view” exception to try to bring charges for evidence outside the scope of the warrant. Second, he wanted the government to agree to search the computer using a taint team. The government refused to go along with those requirements, and Judge Donohue indicated he would deny the application on that basis. Prosecutors then asked Judge Donohue to write an opinion explaining the reasons for his denial so the government could appeal the decision to the District Court. The opinion was sealed until Cunnius was indicted, at which time the opinion was made public.