“Digital Evidence and the New Criminal Procedure” — 10 Years Later

June 27

In Riley v. California, handed down on Wednesday, the Supreme Court blessed the creation of new Fourth Amendment rules to account for the new facts of computer search and seizure. In light of Riley, I hope readers won’t mind me reposting an article that I first noted here at the blog a decade ago: Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279 (2005).

When I circulated a draft of this essay in 2004, some colleagues suggested that it was over-the-top to make the grand claim that computers would lead to a new set of criminal procedure rules. Helpful for law review placement, sure. But awfully unlikely to happen. A decade later, thanks to cases like Riley and Ganias, I’m hoping that the article comes off more as prescient than foolish. A bit dated, as a decade is like a century in Internet time. But hopefully more prescient than foolish.

The abstract:

This essay shows how existing rules of criminal procedure are poorly equipped to regulate the collection of digital evidence. It predicts that new rules of criminal procedure will evolve to regulate digital evidence investigations, and offers preliminary thoughts on what those rules should look like and what institutions should generate them.

Digital evidence will trigger new rules of criminal procedure because computer-related crimes feature new facts that will demand new law. The law of criminal procedure has evolved to regulate the mechanisms common to the investigation of physical crime, namely the collection of physical evidence and eyewitness testimony. Existing law is naturally tailored to the law enforcement needs and privacy threats they raise. Computers have recently introduced a new form of evidence: digital evidence, consisting of zeros and ones of electricity. Digital evidence is collected in different ways than eyewitness testimony or physical evidence. The new ways of collecting evidence are so different that the rules developed for the old investigations often no longer make sense for the new. Rules that balance privacy and public safety when applied to the facts of physical crime investigations often lead to astonishing results when applied to the facts of computer crime investigations. They permit extraordinarily invasive government powers to go unregulated in some contexts, and yet allow phantom privacy threats to shut down legitimate investigations in others.

This Essay explores the dynamics of computer crime investigations and the new methods of collecting electronic evidence. It contends that the new dynamics demonstrate the need for procedural doctrines designed specifically to regulate digital evidence collection. The rules should impose some new restrictions on police conduct and repeal other limits with an eye to the new social and technological practices that are common to how we use and misuse computers. Further, the Essay suggests that we should look beyond the judiciary and the Fourth Amendment for the source of these new rules. While some changes can and likely will come from the courts, many more can come from legislatures and executive agencies that can offer new and creative approaches not tied directly to our constitutional traditions.

Indeed, a number of new rules are beginning to emerge from Congress and the Courts already. In the last five years, a number of courts have started to interpret the Fourth Amendment differently in computer crime cases. They have quietly rejected traditional rules and created new ones to respond to new facts of how computers operate. At a legislative level, Congress has enacted computer-specific statutes to address other new threats to privacy. The changes are modest ones so far. Taken together, however, the new constitutional and statutory rules may be seen as the beginning of a new subfield of criminal procedure that regulates the collection of digital evidence.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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