Since 2006, this column has discussed the uncertainty of standards governing the search and seizure of digital evidence.1 Five years, and many court decisions later, the Fourth Amendment’s application to computers and other accoutrements of the digital age remains murky. Uncertainty regarding the application of the Fourth Amendment to computers, e-mail, and other digitized information has a significant impact on those accused of white-collar crime because so much of the evidence in white-collar cases derives from those sources.2 This article examines recent decisions on the Fourth Amendment’s application to digital evidence, noting a number of open and controversial questions that seem ripe for adjudication by the U.S. Supreme Court. A recent decision from the Court indicates a reluctance to address such issues, however.

Plain View Doctrine

We previously have written about United States v. Comprehensive Drug Testing Inc. (CDT),3 in which the U.S. Court of Appeals for the Ninth Circuit attempted to more clearly define the constitutional limits around electronic evidence, issuing a set of rules to be followed by judges reviewing warrant applications for electronic data. An en banc panel of the Ninth Circuit attempted to “strike a fair balance between the legitimate needs of law enforcement and the rights of individuals and enterprises to the privacy that is at the heart of the Fourth Amendment” by establishing five rules to be followed by judicial officers.

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