Abstract
Judges frequently analogize physical precedents when applying Fourth Amendment law to searches of digital storage devices. But these analogies do not map well from physical to digital spaces because they overlook fundamental structures of digital storage. And the stakes are high—courts’ errors lead to oversearches that irreparably harm device owners regardless of the suspects’ guilt or innocence. This Note examines the structure of common digital storage devices and courts’ erroneous attempts to apply Fourth Amendment law to them.
This Note also proposes a novel two-phase framework that would curb oversearch. The framework uses a forensic program to conduct a limited analysis of digital devices to estimate the probability that the device contains the sought-after evidence. Judges then use that probability when weighing the reasonability of a thorough search of the device. By expanding the reasonability determination for the search and seizure of digital devices, this Note’s proposed framework would reduce oversearch and improve conformity with traditional Fourth Amendment law.
Citation
James Mullen,
(CTRL + F)ourth Amendment Searches of Digital Storage Devices: A Novel Framework,
74 Duke Law Journal
527-571
(2024)
Available at: https://scholarship.law.duke.edu/dlj/vol74/iss2/4