On a number of occasions,this column has examined the evolving case law regarding the application of the Fourth Amendment to digital evidence.1 A recent case from the U.S. Court of Appeals for the Eleventh Circuit demonstrates that other constitutional protections also may be implicated in the government’s seizure of and attempts to search digital evidence. One issue raised by this case, and others like it, is the questionable ability of individuals to protect those rights and privileges in the face of ever-changing technology.
‘Act of Production’
In In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011,2 the Eleventh Circuit considered whether the government could compel the defendant, John Doe, to produce the unencrypted contents of his laptop computers and external hard drives that were password-protected. The digital media was lawfully seized during the course of a child pornography investigation. However, because Federal Bureau of Investigation forensic examiners were unable to access certain portions of the hard drives, the defendant was subpoenaed to produce the “unencrypted contents” of the drives.
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