Search Warrants: Plain View is less clear in a digital context

A recent article in LegalTech news highlights the difficulty in applying the “plain-view” doctrine within the digital realm.  The article discusses web service provider Dream Host’s issues within the scope of search warrants related to data.  While the D.C. Circuit Court ruled that DreamHost had to comply with the search warrant, the arguments that DreamHost raised reflect some uncertainty within the courts, according to the article.  LegalTech’s article points out that while the U.S. Court of Appeals for the Second Circuit ruled that applying the traditional plain view doctrine in a digital world may violate the Fourth Amendment, the Fourth Circuit held that plain view applies irrespective of whether the subject matter is digital or physical.

Consequently, it seems that sooner or later it is going to be up to the U.S. Supreme Court to determine if the nature of digital data requires a review of the particularity component of search warrants.  Additionally, the article indicated that DreamHost raised the specter of personally identifiable information (PII) and how that would be protected in a digital search context.  As a web services provider DreamHost presumably had significant PII on its users, and knowing how the government would safeguard PII becomes a valid concern.  While the issues are somewhat analogous to physical searches, the storing of PII within a specific agency or entity increases the attractiveness of such a repository.  With the possibility of state-actors, the possibility of data exfiltration is the reality in which we live.

At any rate, this issue is likely to present itself in state and federal courts as the fourth amendment protections are applied to a digital world where lifetimes of information on millions of people could be stored on a tiny physical device with a virtual footprint that would exceed the capacity of any person’s home.  What did the framer’s have in mind and how should the court rule with respect to a binary world full of data?  Only time will tell, however, it seems unlikely the framers would have favored search warrants that covered the entire country, or even an entire state, and therein lies the issue.  Particularity becomes quite vexing when dealing with petabytes of data.

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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