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Search warrants in the age of the 'Net

Hot on the Web

This column originally ran in ComputorEdge on June 14, 2002
(Issue 2024, Picture-Perfect Computing)

A court decision out of Minnesota is not only tying the shorts of nearly every ISP manager in the country in knots, but it's also calling into question the ability of our judicial system to keep pace with advances in technology.

In response to a defense challenge in a child pornography case, the judge ruled that during the execution of a search warrant, a law-enforcement officer must be present during the actual search.

At an Internet Service Provider, this means that the staff can't pull the requested files (i.e., archived e-mails, attached files, Web logs) until an officer is present.

As both the prosecution and ISPs are pointing out, the officer isn't going to be the one actually getting the court-ordered files – the ISP staff will. In most cases, the officers would have no idea how to go about getting the files, nor will s/he have the technical expertise to even know what the staff is doing.

An expensive rule

Then there's the cost to taxpayers. In this particular case, the ISP was located in California; the defendant (and investigating police agencies) in Minnesota. When prosecutors had enough evidence to convince a judge to issue a search warrant for the suspect's e-mail activity, the search warrant was sent to the ISP (Yahoo, in this case) in California, which found the requested files and sent them back to the prosecutors.

If this ruling stands (and an appeal was filed by both the federal government and various associations of ISPs), in future cases the investigating police agency would have to fly an officer to the ISP's physical location, sit around while the ISP staff finds the files in question, then fly home – and not necessarily with the files, which are more likely to have been e-mailed or ftp'd back to the agency.

Even if they're burned to a CD-ROM, sending a police officer across the country takes that officer off the streets for a day or two or an errand that is both unnecessary and expensive.

Besides, given the global nature of the Internet, the next time that search warrant may be filed for a server located in Sri Lanka or Argentina.

Not a new problem

But the problem of courts and police officers behaving in a manner that can only be described as clueless in the world of computers, and doing enormous damage through their ignorance, is an old one.

In fact, the pre-eminent online activist organization, the Electronic Frontier Foundation, was created before the Internet was made public in order to try to provide both guidance for government officials and protection to citizens engaged in the then-new cyberworld.

The most famous (or perhaps glaring) example of government overreach was the case of a Milpitas, Calif., couple who ran an adults-only bulletin-board system, or BBS, from their home in the early 1990s. A federal postal investigator in Tennessee logged onto their system, provided proof that was over 21, and then downloaded digital photographs of naughty parts. Federal prosecutors then filed charges against the couple, based on the prevailing community standards in Tennessee.

I can't remember whether the couple was eventually acquitted on appeal or not, but the immediate result of the case was that their entire computer system was seized by federal agents – and in the months following, similar seizures were occurring all across the nation. For awhile it seemed as if anyone with a home computer was in danger of having armed agents smash through their front door looking for porn.

And this wasn't even child pornography – which is and ought to be banned outright, and those that trade in it sent to Singapore for a tidy little caning. These cases all revolved around consensual adult behavior – but the hysteria in the media flamed an anti-computer porn crackdown that left dozens of innocents deprived of their computers for months on end while clueless cops, prosecutors and judges tried to figure out what to do.

Common sense needed

The 8th Circuit Court of Appeals in St. Louis should overturn the Minnesota decision, and return some sanity to the way computer technology is handled in judicial proceedings.

If a defendant's interests are not truly enhanced by the presence of an officer during execution of a search warrant (and it's hard to see how they would be), then the overall economic damage to both ISPs and police agencies surely outweighs what is at best a questionable interpretation of a detail of law.

The fact that a court must already be convinced of the evidence to issue a search warrant, coupled with the reality that the ISPs almost all have more technical expertise than the courts or police agencies when it comes to documenting the veracity and ownership of computer files, combine to offer an overwhelming amount of protection to defendant's critical Fourth Amendment right against unreasonable searches and seizures.

Hopefully, the appellate court will have enough technical savvy to see through the defense argument in the Minnesota case and restore a common-sense standard to executing search warrants in the digital age.