As a federal judge recently observed, “the tools of modern crime have evolved beyond a ski mask and a burlap sack. Like the rest of society, the modern criminal uses computers and mobile devices to do his work.” As a result, evidence of criminality, as well as evidence of day-to-day life, often comingle in the same devices, software, and files. The logistical hurdles inherent in combing through voluminous amounts of often encrypted data or ascertaining relevant information via complicated algorithms has precipitated a new, arguably revolutionary, approach by law enforcement.
As part of investigations into myriad types of criminality, from bribery to wire fraud to many others, the government has begun to submit ex ante warrant applications requesting permission to seize and search the entirety of the contents of the target’s email account or smartphone. This practice has engendered conflicting judicial opinions as well as significant and vociferous outcry. One publication described a decision that allowed this type of warrant to proceed as a major blow to email privacy protections. Another speculated that decisions favorable to the government may run afoul of a U.S. Supreme Court decision issued during the Fall 2014 term that distinguished between searching a “man’s pockets,” and searching digital devices or accounts that are now such a “pervasive and insistent part of daily life that the proverbial visitor might conclude they were an important feature of human anatomy.” See Riley v. California, _ U.S. _, 134 S. Ct. 2473 (2014).
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