Courts and commentators have struggled with the problem of cabining digital searches while still allowing law enforcement sufficient latitude to be efficient and effective. This Note examines current proposals, such as requiring search protocols or abandoning the plain view doctrine, before proposing a solution of its own: revisiting the constitutional requirement of particularity in the warrant. Focusing on particularity is not new; the problem is describing, ex ante, where to search within a corpus of seized data. The language of files and folders is both inadequate and incoherent for this task, but in rejecting it, courts have largely given up on particularly describing where in the data to search.
Data is information, and information has meaning—semantics. Computers are increasingly able to sort and segregate data according to the human meaning it represents. Accordingly, magistrate judges can describe, ex ante in natural language, the type of data that examiners may search based on the evidence sought. Forensic examiners can then use automated tools to retrieve information responsive to that semantic description without searching the entirety of the data. Thus, the privacy of suspects, guilty and innocent, can be protected without giving up the plain view doctrine or compromising effective law enforcement.
Athul K. Acharya,
63 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol63/iss2/3