The Legal Intelligencer: Will Technology Change the Interpretation of the Fourth Amendment? Part 2

The Legal Intelligencer: Will Technology Change the Interpretation of the Fourth Amendment? Part 2 by Leonard Deutchman:

Last week, I discussed the case, United States v. Ganias, 824 F.3d 199 (2nd Cir. 2016), cert. denied, No. 16-263 (S.Ct. Dec. 5), in which 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. In this part of the series, I discuss the meaning and importance of forensic imaging, and the Second Circuit’s take on all of it.

Having discussed the nature of digital evidence as it pertains to searches and preservation, the court found that it need not resolve the issue of whether the retention of the forensic images violated the Fourth Amendment, because it found that the government, by not conducting its second search of the drives until after it had obtained the 2006 search warrant, which focused upon the activities of the defendant, had proceeded in good faith. The court’s reasoning is interesting but not relevant to our concerns here, so we shall skip review of it.