Local officials found out that the plaintiff ISP company was allegedly tolerating child pornography exchanges through its servers and it did not monitor any usage. They obtained a search warrant for the servers for the child porn and seized the computers. The ISP filed a civil rights action against the officials which they lost on First and Fourth Amendment grounds. They argued overbreadth because of seizure of protected materials as well under both the First and Fourth Amendment. Voicenet Communications, Inc. v. Corbett, 2010 U.S. Dist. LEXIS 95619 (E.D. Pa. September 13, 2010). As to the Fourth Amendment overbreadth claim, they failed; the entire server was seizable for off-site search.<\/p>\n
In this case, however, the affidavit of probable cause specifically establishes, in detail, how the plaintiffs’ computer system would be of evidentiary value in the search for evidence of child pornography. The affidavit, which was incorporated into the warrant, states sufficient facts to establish probable cause to believe that contraband would be found in the Quikvue computer system. It limits the scope of the search to Quikvue’s business records, subscriber information, any records pertaining to the distribution or possession of child pornography, and any and all visual depictions of minors engaged in sexually explicit conduct. It also provides that, based upon their training and experience, the affiants knew that computers are utilized by individuals who exploit children, including those who collect and distribute child pornography. The warrant in this case, therefore, was specific as to the place to be searched and the items to be seized, left nothing to the “discretion” or “whim” of the officers conducting the search and complied with the normal preconditions for a warrant.<\/p>\n
The plaintiffs also argue that the warrant was overbroad because it allowed the defendants to seize and keep their equipment off-site. They argue that, instead, the defendants should have seized only the contraband itself, by segregating the contraband material on the plaintiff’s premises. Because of the difficulties inherent in finding, segregating and preserving evidence of contraband on computer systems, however, courts routinely allow the seizure of computer hardware to conduct an off-site search. See, e.g., United States v. Hay, 231 F.3d 630, 634 (9th Cir. 2000); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999); Guest v. Leis, 255 F.3d 325 (6th Cir. 2001). 21 Although the United States Court of Appeals for the Third Circuit has not directly addressed this issue, it has permitted the seizure of computer hardware upon a showing of probable cause that the hardware is the instrumentality or evidence of a crime, such as the possession of child pornography. See, e.g., Vosburgh, 602 F.3d at 527 (allowing the seizure of a destroyed computer hard drive, key drive and external hard drive).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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