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Digital Searches, the Fourth Amendment, and the Magistrates’ Revolt

Berman, Emily, Digital Searches, the Fourth Amendment, and the Magistrates’ Revolt (May 30, 2018). Emory Law Journal, Forthcoming. Available at SSRN:

“Searches of electronically stored information present a Fourth Amendment challenge. It is often impossible for investigators to identify and collect, at the time a warrant is executed, only the specific data whose seizure is authorized. Instead, the government must seize the entire storage medium—e.g., a hard drive or a cell phone—and extract responsive information later. But investigators conducting that subsequent search inevitably will encounter vast amounts of non-responsive (and often intensely personal) information contained on the device. The challenge thus becomes how to balance the resulting privacy concerns with law enforcement’s legitimate need to investigate crime. Some magistrate judges have begun including in their warrants for digital searches limits on how those searches may be carried out—a development that some have referred to as a “magistrates’ revolt,” and which has both supporters and detractors. This Article argues that the magistrates’ “revolt” was actually no revolt at all. Instead, these judges simply adopted a time-honored tool—minimization—that is used to address a conceptually analogous privacy threat posed by foreign intelligence collection. I further argue that embracing both the practice and the label of “minimization” will yield at least two benefits: First, it will recast magistrates’ actions as a new instantiation of a legitimate judicial role, rather than a novel, potentially illegitimate practice. Second, it will allow magistrates to draw on lessons learned from the Foreign Intelligence Surveillance Court’s creative use of minimization to safeguard Fourth Amendment rights in the intelligence-collection context.”

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