Appellate Court Finds Fourth Amendment “Right to Delete” Data Seized in Overbroad Computer Searches

The Second Circuit Court of Appeals issued a ruling recently that could have important implications for Fourth Amendment rights regarding computer data. Often, when investigators obtain a search warrant for digital evidence, they make a copy of the entire hard drive. This is generally considered less burdensome than either seizing the computer itself or reviewing data from the computer on-site. It also almost always results in a collection of data that far exceeds the scope of the warrant. The issue before the Second Circuit was whether law enforcement could use data obtained with a valid search warrant, but that was outside the scope of that warrant, in a subsequent criminal matter. The court ruled that any data seized during a search that is not responsive to the warrant authorizing the search must be deleted. United States v. Ganias, No. 12-240-cr, slip op. (2d Cir., Jun. 17, 2014).

The defendant is an accountant who began providing accounting services to two businesses, American Boiler (AB) and Industrial Property Management (IPM), in 1998. The Criminal Investigative Command (CIC) of the Army began investigating IPM, which had a maintenance and security contract for a vacant Army facility, in 2003, based on a tip that the company was engaging in improper activities. CIC investigators obtained several search warrants related to IPM in November 2003, including one to search the defendant’s office. When they executed the warrant, the investigators seized paper records, and computer specialists made “forensic mirror images” of the hard drives of three computers. Id. at 5.

According to the court, the CIC investigators viewed all electronic data, even data that was outside the scope of any warrant, as “evidence that were to be protected and preserved.” Id. at 7. While they were reviewing the data obtained from the defendant’s computers, CIC investigators invited the IRS to join the investigation. In late 2004, IRS investigators began to suspect that the defendant was misreporting AB’s income, and they officially expanded their investigation in 2005 to include him.

The government asked the defendant in February 2006 for permission to review the remaining data from the November 2003 search, including the defendant’s personal financial data. After the defendant did not respond, investigators obtained a new search warrant to review data that had been in their possession for over two years. The defendant was charged with tax evasion in 2008, and after the trial court denied his motion to suppress, he was convicted.

The Second Circuit acknowledged that the nature of computer data made “the creation of mirror images for off-site review” acceptable in many cases where “wholesale removal of tangible papers would not be.” Id. at 23. The government is still bound by “the rule of reasonableness” when reviewing seized computer data. Id. at 24. The court held that the government may not “indefinitely retain every file” from a computer seized with a valid warrant “for use in future criminal investigations.” Id. at 27. It vacated the defendant’s convictions, finding that the IRS investigators violated his Fourth Amendment rights. The court did not, however, specify any length of time after which the government must delete such data.

If you have been charged with an alleged criminal offense, you should consult with a knowledgeable and experienced criminal defense attorney in order to understand your rights and prepare the best possible defense. Michael J. Brown has represented west Texas defendants in criminal cases for more than 20 years. To schedule a confidential consultation to see how we can assist you, please contact us today online or at (432) 687-5157.

More Blog Posts:

Federal Magistrate Judges Are “Revolting” Against Overbroad Search Warrant Requests for Electronic Evidence, Texas Criminal Lawyer Blog, August 15, 2014
Federal “Automobile Exception,” According to Some Courts, Allows Warrantless Searches of Cars Without Exigent Circumstances, Texas Criminal Lawyer Blog, July 29, 2014
Police Need a Warrant to Search Cell Phones During an Arrest, Supreme Court Rules, Texas Criminal Lawyer Blog, July 28, 2014

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