What Are Your Rights if The Federal Government Wants to Search or Seize Your Computers?
Federal law enforcement may want to search your computer’s contents at some point if you’re under investigation for cybercrime.
Computer evidence might be valuable for prosecuting many other crimes as well.
So, it’s essential to understand what your rights are regarding digital evidence.
Laws Governing Computer Searches
The most important law governing computer searches is the Fourth Amendment of the US Constitution, which guarantees your fundamental right to be safe from unreasonable searches and seizures and is the law that requires law enforcement to obtain warrants before conducting either.
In addition, federal law enforcement agents are bound by 18 U.S. Code § 2701, which prevents unlawful access to stored communications, as well as 18 U.S. Code § 3121, which prohibits individuals from using trap or trace devices on electronics unless they have obtained a court order or an order from a foreign government subject to an executive agreement.
There are always loopholes law enforcement can use to get at your data. For example, if the person’s “reasonable expectation of privacy,” they may not need a warrant to get at your data. There are also established exceptions to warrant requirements that law enforcement may, at times, use.
When do you have a reasonable expectation of privacy?
No hard and fast rule exists. In general, if your machine is located within your home at all times, you should expect privacy.
Out in public, your laptop is generally treated like a closed suitcase or container. Law enforcement isn’t allowed to get into it without a warrant, just like they would not be able to open up your bag without a warrant.
Relevant cases include:
- United States v. Heckenkamp in 2007 established a reasonable expectation of privacy in a personal computer, as did United States v. Lifshitz in 2004.
- United States v. Al-Marri in 2002 notes computers should be treated as if they were closed containers.
- In United States v. Andrus in 2007, the courts ruled that a personal computer is often a repository for private information the owner does not intend to share with others and can be considered one of a person’s most private spaces.
Any information you make openly available to others no longer falls under the reasonable expectation of privacy protection. For example, law enforcement may access documents freely if you store them on a public computer such as a library or university computer or place files in a shared drive while connected to a network.
You can even lose the expectation of privacy if you bring a malfunctioning computer into a repair shop. If the repair person shows that data to law enforcement, they can retain it without incurring issues with the Fourth Amendment. The same would not be true if the repair person were already acting as an agent of law enforcement for some reason.
What must be specified in the warrant?
Case law has been fuzzy about whether warrants cover the entire contents of a machine or just specific files that law enforcement cares about.
Generally, it’s wise to expect that once law enforcement officers receive a warrant to search a computer, they’ll inspect the whole thing, and courts will uphold their right to do so. There have been exceptions, and your defense lawyer may still be able to challenge the search. Nevertheless, such a challenge would be a bit of a long shot.
Search is Complicated
Search and seizure rights are complicated in any case. Many grey areas and issues can render a search inadmissible.
Fortunately, you don’t have to do any guesswork. Just tell your criminal defense lawyer about the search during your case review. Your lawyer can then determine if there is any avenue for challenging the search in court.
In the meantime, if anyone asks permission to search your electronics, you should always ask for a warrant. If you give your consent, law enforcement may search your devices freely and may even gain access enough to plant files that could convict you. When in doubt, just say no.
See also:
Invoking Your Right to Remain Silent in a Federal Criminal Case
