The Electronic Frontier Foundation

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###          |   THE DOCUMENT CASE

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###          |   white papers, rulings, and references of

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###          |  Document #: 3   

#######      |  Title: Constitutional, legal, and ethical

#######      |  considerations for dealing with electronic

###          |  files in the age of cyberspace

###          |  Archived/Published to the Net: August 7, 1991

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FEDERAL ENFORCEMENT 1991

Georgetown University Law Center

Washington, D.C. 

May 16-17, 1991

CONSTITUTIONAL, LEGAL, AND ETHICAL

CONSIDERATIONS FOR DEALING

WITH ELECTRONIC FILES IN THE AGE OF CYBERSPACE

Harvey A. Silverglate and Thomas C. Viles (FN1)

Introduction -- The Reach of 

Cybernetic Technology.

Without pause over the past decade, computers have transformed the

physical organization of work in virtually every office in the nation.

Businesses and law firms are spurning the use of paper to deliver and

store information; instead, they have become dependent upon the use of

computers and electronic systems for these functions.  Now it is common to

draft, revise, and edit all documents -- from briefs, to business

proposals, to contracts -- without ever generating a paper "hard" copy

until the document is ready for signature and submission.  

Furthermore, now it is possible for the personnel of a company or

law firm to conduct all of their in-house discussions on a computer

network which transmits and receives electronic mail ("e-mail").  E-mail

can be used for written messages of great import as well as trivial asides

and gossip.  All such messages can be stored for later retrieval.  Using

networks and e-mail in tandem, teams of people in different offices can

create, edit and complete lengthy written projects, literally without ever

speaking to each other, or ever looking at paper copy.

Communications between the office workplace and the outside world

also can be conducted through the use of  "networks" of computer systems.

For example, the home office of a company can communicate with all of its

affiliates and subsidiaries by the transmission of written messages

between their respective computers ("nodes", in computer argot).  In this

way, all operations which can be performed simultaneously within one

office, can be performed with equal facility among many offices, linked by

the computer networks.  Such systems also enable the attorney to stay in

close contact with a client when it is necessary to work together on a

project which requires close attention to detail.

Computers and computer networks also promise to substantially and

rapidly transform civil society.  There exists a variety of computer

networks, which enable academic institutions and scholars, to conduct

global conferences on matters of common interest.  Through e-mail and

electronic bulletin boards, scholars and researchers can share

experimental data and resources.  See "Common Electronic Policy," The

Economist, Feb. 16, 1991, at 24.  Recently, the volume of academic message

traffic in the United States has been increasing by 30-40% per month.  Id.

This session of Congress is considering a bill, introduced by Sen. Albert

Gore, to spend over $1 billion in computer research, of which $400 million

would be dedicated to the construction of a new National Research and

Education Network (NREN), capable of handling computer traffic many times

faster than the networks currently in existence -- analogous to a new

electronic interstate highway system.  See id.; Leccese, "Hackers under

Attack: Crackdown Raises Questions about New Forms of Speech," Boston

Phoenix, Sept. 7, 1990, at 8, 18.  It is estimated that the entire project

will cost $200 billion to complete.  Leccese, supra, at 22.     

There also are smaller networks, too numerous to mention, which

are not affiliated with any company, university, government agency, or

other established entity.  These independent networks function as forums

for people all over the world to communicate with one another about

matters of interest, from the sublime to the ridiculous.  The largest

computer networks in the United States, InterNet and UseNet, are each

actually made up of 2,000 smaller networks.  See, e.g., "Common Electronic

Policy," supra, at 24; Costikyan, "Closing the Net," Reason, Jan. 1991, at

22.  InterNet reportedly carries the electromagnetic impulses created by

over 500 billion keystrokes per month.  Leccese, supra, at 9.

Approximately 5,000 bulletin boards operate over the networks.  Costikyan,

supra, at 22.

One notable example of the use of computer networks for purely

expressive purposes is the Whole Earth 'Lectronic Link ("WELL"), which

provides political activists, small businessmen, rock and roll fans, and

hundreds of other groupings of people (including lawyers) a forum in which

to discuss matters of common interest.  The WELL is a "node" capable of

running hundreds of different multi-party conversations (or "conferences")

simultaneously.  Like an electronic town meeting, groups of people can

communicate together on a multiplicity of bulletin boards, or users can

send each other private messages by e-mail. (FN2)

Other networks, utilizing more modest equipment, can maintain only

one or two bulletin boards at a time.  Everyone with a personal computer

and access to a phoneline can participate in any of these open networks --

and, with only a little extra equipment, can start a new bulletin board.

Searches and Seizures 

Involving Cybernetic Machines.

Over the past 15 months, the following incidents have come to our

attention:

*On January 24, 1990, a handful of Secret Service agents,

accompanied by two employees of the local telephone company, seized the

equipment of a twenty year old man living with his mother in New York.

From his bedroom, they seized a Commodore 128 computer, 200 floppy disks,

a telephone answering machine, cassette-playing radio, and all of his

musical cassette tapes.  Apparently, the Secret Service was searching for

evidence of alleged "computer crimes."  See Dibbell, "On Line and Out of

Bounds", Village Voice, July 24, 1990, at 27; Jahnke, "The Cops Come to

Cyberspace," Boston Magazine, November 1990, at 140; J. Barlow, Crime and

Puzzlement 8P9 (1990)  According to some reports, this raid (and a few

other raids which were carried out simultaneously) marked the beginning of

the so-called "Operation Sun Devil," described as a "two-year Secret

Service investigation which involved 150 federal agents, numerous local

and state law enforcement agencies, and the combined security resources"

of numerous private telecommunications companies.(FN3)  Barlow, supra, at

9; see also "Crime of the Century," Personal Computer World, Mar. 1991, at

187; Zachary, "Group to Defend Civil Rights of Hackers Founded by Computer

Industry Pioneer," Wall Street Journal, July 11, 1990, at B4; Schatz,

"Foundation to Defend PC Users," Washington Post, July 11, 1990, at B8;

Edelman, "Kapor for the Defense in Computer Field," Boston Globe, July 11,

1990, at 33; "Kapor Forms Group to Aid Hackers," USA Today, July 11, 1990,

at 2B.

*On March 1, 1990 the Secret Service raided the offices of Steve

Jackson Games, a small Austin start-up company which designed and

manufactured fantasy role-playing books and games.  The Secret Service

seized the company's three computer systems, two laser printers,

miscellaneous hardware, papers, back-up disks, and a single pocket

calculator.  The company's plans and galleys for a new role-playing game,

GURPS Cyberpunk(FN4), also were seized, after an agent opined that the

game was a handbook for computer crime.  (The format of Steve Jackson's

games is similar to that of "Dungeons and Dragons"; GURPS Cyberpunk

consists of a lengthy instruction book plus general information about the

game.  In fact, all of the company's games consist solely of printed

matter.  The company was not in the business of manufacturing any

software.)  The Secret Service apparently suspected that an employee of

Steve Jackson Games had participated in unlawful activity on the

employee's own home computer system.  At no time was the owner or any

other employee of Steve Jackson Games considered a suspect.  Because the

seizure of the computers thoroughly disrupted Steve Jackson's business,

half of the company's employees had to be laid off.  It was months before

the company was even able to gain access to its equipment, which held the

manuscript for the about-to-be-published GURPS Cyberpunk game.  Some of

the seized equipment ran a bulletin board which was maintained for the

purpose of swapping new role-playing game ideas with similarly interested

people elsewhere in the United States.  The board, which users gave the

tongue-in-cheek title of "The Illuminati," ceased to operate.  See Levy,

"Search and Destroy: What Happened when the Secret Service Visited Steve

Jackson Games," MacWorld, March 1991, at 51, 52; Costikyan, "Closing the

Net," Reason, Jan. 1991, at 22P24; Lewis, "Can Invaders Be Stopped but

Civil Liberties Upheld?," New York Times, Sept. 9, 1990, at 12; Zachary,

supra, at B4; O'Connor, "$275,000 Donated for Hackers," San Jose Mercury

News, July 11, 1990, at 1F; "Computer Foundation Planned," San Francisco

Chronicle, July 11, 1990, at C4; Edelman, supra, at 39; "Kapor Forms Group

to Aid Hackers," supra, at 2B.  

*On the day of the Steve Jackson Games raid, the employee's home

was searched.  His computer equipment, software, a quantity of TV cable

wire, and telephone parts were seized and carted away.  Also seized was an

arcade version of Pac Man.  To date, the employee has not been charged

with any crime.  See Lewis, supra, at 12; Dibbell, supra, at 30.

*Two years ago, a computer hobbyist running a small bulletin board

service out of Lockport, Illinois, discovered that his bulletin board had

been used to transmit a telephone company document.  He promptly notified

the telephone company, and cooperated fully and voluntarily with law

enforcement authorities in the investigation of what he had reported.  He

probably regrets that now, for the Secret Service agents, armed with a

warrant, later seized all of the man's computer equipment, in order to

secure evidence in their investigation of the transfer of telephone codes.

Because of the seizure, his bulletin board was shut down.  See, e.g.,

Costikyan, supra, at 24; Leccese, supra, at 21; Goldstein, Special Issue,

"2600 magazine's commentary on Operation Sun Devil," 1 Computer

Underground Digest #1.10 (May 17, 1990) (available on the WELL, April 12,

1991); J. Barlow, supra, at 11-12.

*A college student in Missouri published a computer magazine

entitled Phrack, which he distributed over the networks to about 1,300

people.  He found a phone company document on a publicly accessible

computer bulletin board, and he reprinted it in his magazine.  Although

the government never alleged that he was involved in taking the document,

his computer system was seized, and he was charged with interstate

transportation of stolen property.  The computer seizure, ostensibly

occasioned by his republication of a stolen document, effectively

restrained him from publishing any more issues of Phrack.(FN5)  Charges

against the young man later were quietly dropped, when it was discovered

that the "stolen property" -- the phone company document -- was available

from the phone company itself, and that it cost somewhat less that $20.

But the entire episode must have dampened his zeal to publish, for the

magazine no longer appears.  See "Crime of the Century," supra, at 188;

Costikyan, supra, at 23-25; Levy, supra, at 52, 54; "United States v.

Zod," The Economist, Sept. 7, 1990, at 23; Leccese, supra, at 20; J.

Barlow, supra, at 10-11; Zachary, supra, at B4; Edelman, supra, at 39;

"Kapor Forms Group to Aid Hackers," supra, at 2B; "Computer Foundation

Planned," supra, at C4; O'Connor, supra, at 8F; Markoff, "U.S. Drops

Computer Case against Student," New York Times, July 28, 1990, at 9.

*On May 8, 1990(FN6), as part of "Operation Sun Devil," another

bulletin board, called "RIPCO," was raided.  All of the equipment

necessary to run the bulletin board was seized.  The RIPCO board had

operated since 1983, and it had accumulated extensive text files which

were accessible to its 600 users.  No arrests were made, nor have any

charges been filed against the operators.  But the board was shut down.

See, e.g., Thomas & Meyer, "Update on Ripco BBS and Dr. Ripco," 1 Computer

Underground Digest, #1.26, (Aug. 2, 1990) (available on the WELL, Apr. 12,

1991).

*Also frequent are instances where computers are seized incident

to an unrelated arrest.  For example, on February 28, 1991, following an

arrest on charges of rape and battery, the Massachusetts state and local

police seized the suspect's computer equipment.  The suspect reportedly

operated a 650-subscriber bulletin board called "BEN," which is described

as "geared largely to a gay/leather/S&M crowd."  It is not clear what the

board's seizure is supposed to have accomplished, but the board is now

shut down, and the identities and messages of its users are in the hands

of the police.  See Boyce, "Police Confiscate SM Files," Gay Community

News, Mar. 11-17, 1991, at 3.(FN7)

The Gulf between Law Enforcement

Procedure and the Constitution.  

This small sampling of cases demonstrates the unequivocal

determination of the government to conduct investigative seizures of

entire computer systems, even when only a few files may be relevant to an

investigation or prosecution.  Such seizures can have immediate and

catastrophic effects on computer users who have no connection to the

conduct being investigated.  Offices cease to function; businesses can no

longer operate or service customers; bulletin boards and other forums are

shut down.  As discussed below, it is no exaggeration to compare such

searches and seizures to the writs of assistance and general warrants

which the Constitution's framers found so odious, and which the Fourth

Amendment was designed to prevent. 

Law enforcement agencies explain this practice by referring to

problems inherent in searching not only computers but any other storage

system:  The searching officers cannot know precisely which part of the

system contains the data they seek. Furthermore, with the right sort of

elegant technology, computer files can be deleted at the push of a button.

According to this view, prudence  suggests that the computer search will

be futile, unless the entire system is seized and removed, so that the

contents can be examined at leisure.  

That means, of course, the government's leisure, not the user's.

It is cold comfort that the Fourth Amendment tolerates searches of the

property of people not suspected of criminal conduct, and that it even

permits searches in entirely noncriminal contexts.(FN8)  People who are

the victims of such a seizure are naturally outraged.  Where the object of

the seizure is a bulletin board, potentially thousands of users are

deprived of a forum in which to communicate, and their words (recorded in

the computer system housing the bulletin board) now are open to government

scrutiny.  The seizure of a small business's computer system, especially

one involved in sales or research and development, effectively destroys

the business.  In larger companies, when the investigation into the

operations of one department or subsidiary leads to a computer seizure,

the operations of the entire company can be crippled or frozen.  And, of

course, the seizure of one or two pieces of computer equipment in a law

office effectively can constitute the seizure of all of the office's

client and billing files.

The practice of conducting these searches and seizures represents

the immense gulf that exists between law enforcement personnel and

magistrates, on the one hand, and sophisticated computer users, on the

other.  As Mitchell Kapor and Michael Godwin point out in "Civil Liberties

Implications of Computer Searches and Seizures: Some Proposed Guidelines

for Magistrates who Issue Search Warrants," law enforcement personnel who

conduct computer seizures seem to focus exclusively on what *could* go

wrong in a computer-related situation.(FN9)  The appropriate question

under the Fourth Amendment, which every  magistrate should ask before

issuing a warrant, is not what could go wrong, but instead for what

adverse events probable cause has been shown.

It may be useful for prosecutors to know that "the data in the storage

device or media can be erased, replaced with other data, hidden,

encrypted, modified, misnamed, misrepresented, physically destroyed, or

otherwise made unusable."  But this does not mean that the magistrate

should always find probable cause to believe that a particular computer

owner or operator has done so, and then authorize a highly intrusive and

disruptive seizure of a BBS [computer bulletin board system] so that

investigators can do a low-level search for hidden or encrypted data.

Reprinted in  Proceedings: Fourth Annual Virus & Security Conference 426,

428 (1991), quoting D. Parker, Computer Crime:  Criminal Justice Resource

Manual, at 68 (1989).  What seems to have happened is that prosecutors and

law enforcement agents, in their zeal to avoid even the possibility that

evidence might be lost, have gone overboard and undertaken general

searches.  As noted, the seizure of an entire computer system is

equivalent to seizing all of a person's hard copy files, or (in the case

of a bulletin board system or desktop publisher) seizing an entire

printing press.  

Writs of Assistance, General Searches, 

and the Fourth Amendment.

Even people of the so-called "framer's intent" school of

constitutional interpretation must concede that such seizures go too far.

"The use by government of the power of search and seizure as an adjunct to

a system for the suppression of objectionable publications is not new."

Marcus v. Search Warrant, 367 U.S. 717, 724 (1961).  The Writs of

Assistance, which the British Crown issued to authorize searches for, and

seizures of, unlicensed publications, were an abomination to the American

colonists.  See generally Stanford v. Texas, 379 U.S. 476, 481-82 (1965).

James Otisdescribed the general search warrants used to enforce as "the

worst instrument of arbitrary power, the most destructive of English

liberty, and the fundamental principles of law, that ever was found in an

English law book."  Id. at 481, citing Boyd v. United States, 116 U.S.

616, 625 (1886).  The Writs authorized the search of anyone connected with

an unlawful or unlicensed publication, and the seizure of all of the

papers and documents of such people.  

The Fourth Amendment has roots in the cases of Wilkes v. Wood, 19

How. St. Tr. 1153 (1763), and Entick v. Carrington, 19 How. St. Tr. 1029

(1765), in which free-thinking pamphleteers were arrested, and all of

their books and papers seized, because of their alleged publication of

seditious libels.  The Wilkes case ended in liberty's favor, when the

Court of Common Pleas ordered the Secretary of State to pay Wilkes

damages.  The Entick case resulted in Lord Camden's declaration that the

power to issue Writs of Assistance, and to conduct general searches, was

an unlawful offense to civilized notions of justice.  In Lord Camden's

words, 

this power so assumed by the Secretary of State is an execution upon all

of the party's papers, in the first instance.  His house is rifled; his

most valuable secrets are taken out of his possession, before the paper

for which he is charged is found to be criminal by any competent

jurisdiction, and before he is convicted either of writing, publishing, or

being concerned in the paper.

19 How. St. Tr. at 1064, quoted in Stanford, supra, 379 U.S. 484.

Parliament later acted legislatively to declare general warrants to be

unlawful.  Stanford, supra, 379 U.S. at 484, citing 16 Hansard's

Parliamentary History of England, at 207.

The Fourth Amendment was adopted a generation after Wilkes and

Entick, while the memory of the Crown's unrestrained searches of colonial

businesses for statutory violations was fresh.  The amendment provides

that all warrants shall "particularly describ[e] the place to be searched,

and the ... things to be seized."  In view of the Fourth Amendment's

history, and its explicit language, it is beyond serious dispute that the

Constitution prohibits wide-ranging exploratory searches.  Neither can the

police rummage through a person's belongings sua sponte, nor can a

magistrate issue a warrant permitting a general and unlimited search.

E.g., Steagald v. United States, 451 U.S. 204, 220 (1980); Lo-Ji Sales,

Inc. v. New York, 442 U.S. 319, 325-26 (1979); see also Marshall v.

Barlow's, Inc., 436 U.S. 307, 312-13 (1978); Roaden v. Kentucky, 413 U.S.

496 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)("[T]he

specific evil is the 'general warrant' abhorred by the colonists, and the

problem is not that of an intrusion per se, but of a general, explanatory

rummaging in a person's belongings."); Stanford, supra, 379 U.S. at

485-86; Marcus, supra, 367 U.S. at 728-29.  Instead, the Fourth Amendment

plainly directs that a search shall be lawful only when it is directed to

particular items for which probable cause is demonstrable. 

The courts recognize that the First and Fourth Amendments grew

from the same historical source, for the struggle for press freedom was

energized by the struggle against the license to print, and against the

prior restraints imposed by the Crown to enforce the license.  In the

Supreme Court's words,

The struggle for the freedom of the press was primarily directed against

the power of the licensor ... And the liberty of the press became

initially a right to publish "without a license what formerly could be

published only with one."  While this freedom from previous restraint upon

publication cannot be regarded as exhausting the guaranty of liberty, the

prevention of that restraint was a leading purpose in the adoption of that

constitutional provision.

Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).  The Supreme Court

commands that special care be taken when authorizing or reviewing a search

involving any entity engaged in the publication or dissemination of ideas.

"Freedom of the press" long has been interpreted broadly to

protect not only newspapers publishers and pamphleteers, e.g., Lovell,

supra, 303 U.S. at 452, but also motion pictures, Roaden, supra, 413 U.S.

496; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952); United

States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948), and even

computer bulletin boards, Legi-Tech v. Keiper, 766 F.2d 728, 734-35 (2d

Cir. 1985), from prior restraints and general searches.  In order to avoid

prior restraints on speech, the particularity requirement of the Fourth

Amendment "is to be accorded the most scrupulous exactitude when the

`things [to be seized]' are books, and the basis for their seizure is the

ideas which they contain."  Stanford, supra, 379 U.S.at 485, citing

Marcus, supra, 367 U.S. 717; A Quantity of Copies of Books v. Kansas, 378

U.S. 205 (1964).

The Need for Heightened Awareness 

and New Limiting Rules.

The seizure of a computer's hard drive is the functional

equivalent of the seizure of all of the files in a small to medium size

law office, or all of the records of a small to medium size business.

After the seizure is accomplished, law enforcement personnel are able to

read virtually every word that had been printed in an attorney's files, or

to control the continued life of a business.  It is critical that rules

and protocols be developed so that the scope of computer searches and

seizures are minimized. 

Law enforcement professionals and attorneys must begin to realize

that just because it is convenient to seize a computer system (because the

system can consist of no more than a half dozen pieces of equipment), it

is not necessarily constitutional.  Such seizures are tantamount to the

general searches and seizures which were generally regarded as the patent

abuses of tyranny when the Constitution was drafted.  

Judges and magistrates who issue computer search warrants must

become more sensitive to the constitutional problems posed by authorizing

the seizure of entire computer systems.  Because such warrants are

tantamount to the Writs of Assistance (which even the English courts under

George III condemned a generation before the United States Constitution

was adopted) the courts should be especially aware not only of Fourth

Amendment interests, but also of the First Amendment interests, when a

bulletin board or network equipment is seized.  The Constitution imposes

"special restraints upon searches for and seizures of material arguably

protected by the First Amendment."  Lo-Ji Sales, supra, 442 U.S. at 326

n.5.(FN10)

  We all need to think more critically when dealing with the notion

that, unless entire computer systems are seized, electronic data will be

altered or destroyed.  Magistrates should also require that parties

seeking a warrant similarly should demonstrate the probability that the

owner of the system is capable and willing to obliterate data within the

system during the short interval between presentation of the warrant and

commencement of the search.

To seize an entire computer system for the sake of a couple of

documents contained therein is inefficient, overly intrusive, and

potentially disastrous for the owner of the system.  A better course would

be to have agents sophisticated in the use of computer equipment search

the system on-site, and to copy onto a disk the documents which motivated

the application for a warrant in the first place.  Before authorizing the

seizure of entire computer systems, magistrates should require that the

applicant demonstrate probable cause for the belief that the entire system

is either completely dedicated to illegal activity, or permeated with

evidence of unlawful conduct.  Wherever possible, the warrant should

authorize the seizure only of the relevant documents; if the documents

cannot be identified, then just the disks or tapes containing the relevant

documents should be taken.  Too often there have been cases where a

computer operator's entire collection of disks has been seized.  There is

no difference between this and ransacking a library. 

Law enforcement professionals and magistrates also should be aware

of the fact that, where there are no disks, and the document to be seized

is likely to be found in the computer's central data storage (or "hard

disk"), the document easily can be copied onto a portable (or "floppy")

disk.  The need to show authenticity should not justify the seizure of a

computer when disk or tape copies can be made.  A document thus retrieved

still would be admissible evidence under Rule 1001(1), which defines

"writings" and "recordings" broadly to include "letters, words, or

numbers, or theirequivalent, set down by  . . . magnetic impulse,

mechanical or electronic recording, or other form of data

compilation."(FN11) 

It is technologically possible that a computer system is rigged

with a "booby trap or degausser," which is designed to obliterate data in

a computer when there has been unauthorized tampering.  This possibility

can be invoked to justify all sorts of Fourth Amendment mischief,

including wholesale seizure and "no-knock" warrants.  In fact, it is

highly unlikely that a computer system would be fitted with a such booby

trap, and this factor should not be regarded as common, but as highly

exceptional as the "Mission: Impossible" tape which self-destructs in five

seconds.  When an officer posits a potential booby trap to justify a

highly intrusive and disruptive search and seizure, the courts should be

prepared to impose a heavy burden of proof on law enforcement officials

who claim that such devices are in place; law enforcement officials should

be prepared to meet such a burden.

It is worth noting, however, that in certain situations the

computer system itself is the means or instrumentality of a crime.  Using

a network, software can be stolen, funds can be embezzled, and various

wire frauds can occur.  See, e.g., J. McEwen, Dedicated Computer Crime

Units 1-5 (National Institute of Justice, 1989).  But it is critical that

magistrates and law enforcement officials distinguish investigations where

the computer itself has been used to commit a crime, and where the

computer system merely is a channel of communication, like a telephone.

To seize a computer, because information related to a crime was merely

communicated through it, is tantamount to seizing telephones because two

co-conspirators spoke to each other over it.  Proof of the crime can be

gotten by less intrusive means, and innocent third parties still may need

to use those telephones.

Law Enforcement and the

Particularity Requirement. 

It is well established that search warrants should leave nothing

to the discretion of the executing officer; indiscriminate searches are

constitutionally intolerable.  Indeed, any search warrant which authorizes

the search and seizure of items beyond those for which probable cause has

been demonstrated, is constitutionally defective.  See, e.g., Lo-Ji Sales,

supra, 442 U.S. 319; Voss v. Bergsgaard, 774 F.2d 402, 404-05 (10th Cir.

1985)(warrant invalid where most of it authorized rummaging through files

and records for evidence pertaining to any federal crime, under the guise

of a criminal conspiracy investigation).  It therefore is troubling that

law enforcement officers have so frequently resorted to the general

seizures of computer systems, which contain a myriad of different files,

when only particular files or categories of files are relevant.  Even more

disturbing is the apparent insouciance with which some law enforcement

officers regard the seizure of entire systems of computer equipment; to

some officers, the particularity clause of the Fourth Amendment is not

even relevant.  Illustrative is this statement by a Special Agent at the

FBI Academy:

[The Fourth Amendment "particularity"] provision requires that a warrant

authorize only a search of a specific place for specific named items.

Coupled with the probable cause requirement, this provision prevents

general searches by insuring that the warrant describes a discreet,

defined place to be searched, describes only items connected with criminal

activity for which probable cause has been established, and describes the

items so definitely that it removes from an officer executing the warrant

the discretion of determining which items are covered by the warrant and

which are not.  It also provides a signal of when a search is at an end,

that is, when all items named in the warrant have been located and seized

or when all possible hiding places for items not located have been

explored.  Since the "place to be searched" portion of the particularity

requirement has no special impact on computer searches, it will not be

discussed.

Sauls, "Raiding the Computer Room:  Fourth Amendment Considerations (Part

I), 55 FBI Law Enforcement Bulletin 25, 29 (May 1986) (emphasis added).

Similarly, another Department of Justice publication sets forth, with

apparent approval, the following wide-ranging language in a "sample"

search warrant:

In the county of Baltimore, there is now property subject to seizure, as

such computers, keyboards, central processing units, external and/or

internal drives, internal and/or external storage devices such as magnetic

tapes and/or disks, terminals and/or video display unit and/or receiving

devices and peripheral equipment such as, but not limited to, printers,

automatic dialers, modems, acoustic couplers, and or [sic] direct line

couplers, peripheral interface boards and connecting cables or ribbons,

diaries, logs, and other records, correspondence, journals, ledgers

memoranda [sic], computer software, programs and source documentation,

computer logs, magnetic audio tapes and recorders used in the obtaining,

maintenance, and or [sic] dissemination of information obtained from the

official files and computers of the [sic] MCI Telecommunications, Inc. and

other evidence of the offense.

See, C. Connolly, Organizing for Computer Crime Investigation and

Prosecution at 81 (National Institute of Justice, 1989).

When computers are the object of the search, we see again the zeal

of the special investigating judges in the Court of High Commission under

King James I -- whose mission was "to inquire and search for . . . all

heretical, schismatical and seditious books, libels, and writings, and all

other books, pamphlets and portraitures offensive to the state or set

forth without sufficient and lawful authority in that behalf . . . and

their printing-presses themselves likewise to seize and so to order and

dispose of them . . . as they may not have to serve or be employed for any

such lawful use,"  Marcus, supra, 367 U.S. at 725-26, citing Pat. Roll, 9,

Jac. I, Pt. 18 & Jac. II, Pt. 15.  The electronic bulletin board

appropriately should be viewed not as a weapon or burglary tool, but

instead as a First Amendment-protected institution, like the newspaper or

any public forum.(FN12)  See generally, Jensen, An Electronic Soap

Box:Computer Bulletin Boards and the First Amendment, 39

Fed.Communications L.J. 217, 235P43, and authorities cited therein. 

In all cases, consideration should be given to training

technologically sophisticated law enforcement officers, and having them

available to execute the computer searches.  Furthermore, magistrates

should consider appointing similarly knowledgeable special masters to

supervise such searches.  Such roles can be assumed by people who, though

technically literate, are not officers of the court or law enforcement

agency.  See, e.g., Forro Precision, Inc. v. International Business

Machines Corp., 673 F.2d 1045, 1054 (9th Cir. 1982)(police search assisted

by IBM employee because warrants required that specific technical

documents be identified); see also, DeMassa v. Nunez, 747 F.2d 1283, 1285

(9th Cir. 1984)(court-appointed special master supervised search of law

office files, permitted seizure only of documents within scope of

warrant).  Of course, the court should clearly explain to any appointed

special master the proper limits of the master's role in the search.  See,

e.g., Lo-Ji Sales, supra, 442 U.S. at 321-24.

Privacy Rights of Third Parties

and Statutory Provisions.

In addition to the Constitution's basic guarantees, Congress and

various state legislatures have enacted additional privacy protections for

people who use computers, and for people whose information is stored in

them.       

Magistrates and law enforcement officials should be cognizant of

the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C.  2701-2711,

which protects the privacy of various electronic communications, including

e-mail.  See, Kapor & Godwin, supra, at 431-32.  Under the ECPA, a piece

of electronic mail cannot be reviewed or seized unless the law governing

warrants has been strictly complied with.  See 18 U.S.C.  2703(a).  The

language of this section seems to require that an order for the disclosure

of electronic mail must particularly describe the communications to be

sought; general rummaging and reviewing is not permitted. Id.(FN13) 

Also important is the First Amendment Privacy Protection Act

("PPA"), 42 U.S.C.  2000aa et seq., which was enacted in response to the

Supreme Court's holding in Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

Protected under the PPA are documents and materials "possessed in

connection with a purpose to disseminate to the public a newspaper, book,

broadcast or similar form of public communication," 42 U.S.C.  2000aa(a),

which would seem to embrace electronic bulletin boards and

publicly-accessible computer networks.  The PPA operates to prohibit

blanket searches and seizures of such entities, unless there exists

"probable cause to believe that the person possessing the materials has

committed a criminal offense to which the materials relate," and such

criminal offense does not consist of "the receipt, possession,

communication or withholding of such materials." 42 U.S.C.  2000aa(a)(1).

The practical effect of the PPA would seem to be to strictly limit

wholesale computer seizures where the systems are used for bulletin boards

or other general communications.  In such situations, a seizure is

appropriate only where the system's operators are directly implicated in

unlawful activity.  However, where the system has been used as a conduit

by others who are criminally motivated, but the operator is not involved,

the PPA would seem to require that no search take place, but that instead

a subpoena be issued for the relevant information.  

It also is worth noting that the Attorney General has issued

guidelines under the PPA, governing the execution of search warrants where

highly confidential or personal information relating to innocent third

parties might fall into the hands of law enforcement authorities.  See 28

C.F.R., Part 59. Under the guidelines, federal officials should "not use

search and seizure to obtain documentary materials in the possession of

disinterested third parties unless reliance on alternative means would

substantially jeopardize their availability. . . or usefulness," where

less obtrusive means of obtaining such materials are available.  28 C.F.R.

59.1, 59.4(a)(1).  Under the PPA guidelines, "documentary materials"

include "materials upon which information is electronically or

magnetically recorded."  28 C.F.R.  59.2(c).  Sensitive to the potential

for violating the privacy rights of innocent third parties, the Attorney

General's guidelines impose strict controls over search warrants executed

upon records in the custody of physicians, lawyers, or the clergy.  28

C.F.R.  29.4(b)(4).  This heightened sensitivity to the privacy rights of

innocent third parties is reasonable, and should be extended to situations

where third parties other than patients, clients, and penitents are

affected by the documentary search and seizure.  Considering the high

volume of communications which occur over many computer systems, and the

potential chilling effect that the government seizure of such

communications will have, magistrates and prosecutors appropriately should

impose similar limiting rules for computer seizures.

Ethical and Practical 

Considerations for Attorneys.

Private defense attorneys and in-house corporate counsel also can

play a useful role in controlling the unbridled search and seizure of

computers.

They should become aware of how vulnerable their clients' computer

systems are to such searches, and of the potentially disastrous

consequences which would follow the seizure of a computer system.  They

should be prepared to move for the return of seized computer equipment

under Rule 41(e), Fed.R.Crim.P., on the ground, inter alia, that the

particularity clause of the Fourth Amendment has been violated by such an

overbroad search and seizure.  For the same reason, if the client is

indicted, computer searches and seizures provide fertile grounds for

suppression motions.(FN14)

Short of such disasters, however, counsel should be aware of some

of the ethical problems which computer filekeeping and communications

pose.  Both the Constitution and the ethical precepts of the legal

profession protect client secrets.  Although some details of the

attorney-client relationship may not be privileged -- for example, the

mere fact that the relationship exists, the identity of the client, and

the legal fees paid -- communications between counsel and client are

absolutely privileged, and attorney work-product enjoys presumptive

protection from disclosure.

The Code of Professional Responsibility prohibits the attorney

from revealing either "confidences" which a client has revealed for the

purpose of obtaining legal services, or "secrets" of the client's affairs

which, although not useful for the purpose of representation, might

embarrass the client or hurt business interests.  See DR 4-101(A), (B).

The attorney-client privilege, limited by law to communications for the

purpose of seeking or rendering legal advice, is "more limited than the

ethical obligation of a lawyer to guard the confidences and the secrets of

his client."  EC 4-4.  The code similarly imposes on the attorney the duty

to exercise reasonable care to prevent employees, associates and all

others from disclosing client secrets and confidences.  See DR 4-101(D).

The Model Rules of Professional Conduct also are protective of

client confidences.  Rule 1.1 enjoins the lawyer not to reveal

"information relating to the representation of a client."  Although this

language seems to eliminate from the attorney's duties the protection of

information which, though not essential to representation, may prejudice

the client's non-legal interests, the Comment to Rule 1.1 seems to

rehabilitate the protection of non-legal client secrets.  The Comment

explains that attorney-client confidentiality is necessary for the client

"to communicate fully and frankly with the lawyer even as to embarrassing

or legally damaging subject matter." (Emphasis added.)  The Comment

distinguishes Rule 1.6 from DR 4-101, and it holds that the Rule's

application to information "relating to the representation" reaches

morebroadly than the Code's protection of information "gained in" the

relationship which the client has requested to be kept confidential.

In-house counsel should be certain that confidential legal files

are segregated from general corporate files.  Other attorneys should make

sure that their clients similarly segregate such files on separate disks.

If possible, and especially when a particularly sensitive investigation is

underway, in-house counsel should detach its computer system from the

network upon which the rest of the company's computers operate.  Clients

should be instructed to store privileged information to "floppy" disks,

and that such information should be erased completely from the computer's

memory or "hard" disks.

Counsel need to be prepared to convince a court that certain

communications were made in complete confidence.  See, e.g., S.E.C. v.

Gulf & Western Industries, Inc., 518 F. Supp. 675 (D.D.C. 1981); In re

Ampicillin Antitrust Litigation, 81 F.R.D. 377 (D.D.C. 1978).  It will be

harder to make this showing if it should turn out that privileged files

were accessible to anyone in the corporation.  Instead, the expectation of

confidentiality should be clearly apparent from the demonstrable conduct

of the party asserting a privilege.  Gulf & Western, supra, 518 F.Supp. at

682; see also, Upjohn Co. v. United States, 449 U.S. 383, 387 (1981)

(counsel should be able to show that employee was aware that

communications were for the purpose of legal advice when made).  

Similarly, counsel should make sure that employees understand that

confidential communications should not be placed over a generally

accessible office computer network, and that legal communications should

be removed and segregated from parts of the system which are generally

accessible.  Under certain circumstances, when privileged documents are

left in computer files where others can view them, confidentiality may

have been constructively waived.  "[O]nce the privilege exists

the corporate client must be diligent in its intra-corporate

confidentiality."  J. Gergacz, Attorney-Corporate Client Privilege

3.02[2][d][ii](1987) (FN15)

There is only so much counsel can do, however, to minimize the

possibility that privileged information is seized.  Obviously, it would be

wasteful to restructure an entire filing system in seemingly paranoid

anticipation of a general search.  But counsel should insure that the

client takes deliberate and painstaking precautions to keep its

electronically recorded confidential communications from prying eyes

within the office, as well as from without. 

It is important to note that the law is far from settled on the

issue of whether privileged materials which have been abandoned or stolen

lose their protective character.  Older authorities hold that all

involuntary disclosures of information remove the privilege.  8 Wigmore,

Evidence, sec. 2326 (McNaughton Rev. Ed. 1961).  The modern view is to the

contrary.  See, e.g., J. Gergacz, supra,  5.03[2][e]; Suburban Sew 'N

Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254, 260 (N.D.Ill. 1981);

see also Bower v. Weisman, 669 F. Supp. 602, 606 (S.D.N.Y. 1987).  But it

is safe to say that it does not help a client's case to have filed

confidential communications promiscuously in the company's computer

network.  And disclosure of communications beyond employees who "need to

know" may constitute a waiver of confidentiality.  See, J. Gergacz, supra,

at  5.03[3], citing James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 142

(D.Del. 1982).  As John Gergacz observes,

Courts which have strongly emphasized the confidentiality characterization

of the waiver doctrine may be less amenable to corporate policies that do

not strongly limit access by non-essential employees to the privileged

communications.  Even so, corporate counsel should take care in preserving

the confidentiality of the privileged communications within the

organization.  Privileged documents should be circulated only to those

corporate members who need to know.  The broader the circulation list, the

less distinguishable corporate treatment of confidential communications

will be from general firm memos.  In addition, . . . separate files should

be kept for privileged communications and those that are circulated should

be kept in separately marked . . . folders so as to minimize commingling

of privileged documents with nonPprivileged, even within the same filing

system.  Finally, the corporation should have and follow a policy of

authorized and unauthorized access to various files.

J. Gergacz Attorney-Corporate Client Privilege, supra,  5.03[3].

Conclusion.

This suggestive (but far from exhaustive) review is a plea to

judges and magistrates, prosecutors and defense attorneys, in-house and

independent counsel, who are or may be involved in the criminal process --

to study the constitutional, ethical, strategic, and business implications

of the new computer technology more closely.  Computers have essentially

miniaturized the office place; but they pose the concomitant danger of the

revival of the Writ of Assistance.  True, computers enable us to easily

store, and more easily to retrieve, a wide variety of information using a

very small "file cabinet"; but one should resist the temptation to pack

everything into one system.  The courts and prosecutors should be

sensitive to how close indiscriminate computer seizures come to the police

practices which precipitated a revolution.  And counsel should be

sensitive to the possibility that the poorly considered use of computer

technology can erode the client's constitutional rights and privileges.

We should be alert to the computer's dangers as well as to its undeniable

convenience and other benefits.

FN1.  Mr. Silverglate is a partner, and Mr. Viles an associate, at the

Boston (Mass.) law firm of Silverglate & Good.  The authors are counsel to

the Electronic Frontier Foundation (EFF), which is described in this

paper, and which is involved in a few of the matters discussed here.  The

authors gratefully acknowledge the help of Mitchell Kapor and Michael

Godwin of EFF, as well as of associate Sharon Beckman and legal assistants

Chauncey Wood and Gia Barresi of Silverglate & Good.

FN2.  John Perry Barlow, one of the founders of the Electronic Frontier

Foundation, explains the meaning of "cyberspace" best -- it is the

totality of interconnected computer networks, and the activities taking

place on them:

The WELL ... is an example of the latest thing in frontier

villages, the computer bulletin board.  In this kind of small town, Main

Street is a minicomputer to which ... as many as 64 microcomputers may be

connected at one time by phone lines and ... modems.

In this silent world, all conversation is typed.  To enter it, one

forsakes both body and place and becomes a thing of words alone.  You can

see what your neighbors are saying (or recently said) ... .  Town meetings

are continuous and discussions rage on everything from sexual kinks to

depreciation schedules.

There are thousands of these nodes in the United States, ranging

from PC clone hamlets of a few users to mainframe metros like CompuServe,

with its 550,000 subscribers.  They are used by corporations to transmit

memoranda and spreadsheets, universities to disseminate research, and a

multitude of factions, from apiarists to Zoroastrians, for purposes unique

to each.

Whether by one telephonic tendril or millions, they are all

connected to one another.  Collectively, they form what their inhabitants

call the Net.  It extends across the immense region of electron states,

microwaves, magnetic fields, light pulses and thought which sci-fi writer

William Gibson named Cyberspace.

J. Barlow, Crime and Puzzlement, 2P3 (1990)(emphasis in original).  For

other descriptions of the range of topics open for discussion on the

networks, see Walker, "American Diary: In Thrall to the Data Bank,"

Manchester Guardian Weekly, Mar. 24, 1991, at 24, and Leccese, supra, at

18.

FN3.  As of this writing, the scope of "Operation Sun Devil" is unclear.

Although many wholesale seizures of computer equipment have occurred over

the past year and a half, executed by teams of federal and state agents,

some law enforcement officers specifically have disavowed that their

particular police action was a part of "Sun Devil."   For example,

"[f]ederal officials said that the raid on Steve Jackson Games [see infra]

was not part of Operation Sun Devil."  Lewis, "Can Invaders Be Stopped but

Civil Liberties Upheld?," New York Times, Sept. 9, 1990, at 12F.

FN4.  "GURPS" is an acronym for "Generic Universal Role-Playing System."

FN5  It is instructive to compare the experience of Phrack's young

publisher with the treatment accorded other well-known publishers of

pilfered documents.  See New York Times v. United States, 403 U.S. 713

(1971).

FN6  This apparently was the climactic day for the "Sun Devil"

investigations.  Barlow writes:

One May 8, 1990, Operation Sun Devil, heretofore an apparently random and

nameless trickle of Secret Service actions, swept down on the Legion of

Doom and its ilk like a bureaucratic tsunami.  On that day, the Secret

Service served 27 search warrants in 14 cities from Plano, Texas to New

York, New York. ...

In a press release following the sweep, the Secret Service boasted

having shut down numerous computer bulletin boards, confiscated 40

computers, and seized 23,000 disks.  They noted in their statement that

"the conceivable criminal violations of this operation have serious

implications for the health and welfare of all individuals, corporations,

and United States Government agencies relying on computers and telephones

to communicate." ...

[T]he deliciously ironic truth is that, aside from [a]  3-page

Bell South document, the hackers had neither removed nor damaged anyone's

data.  Operation Sun Devil, on the other hand, had "serious implications"

for a number of folks who relied on "computers and telephones to

communicate."  They lost the equivalent of about 5.4 million pages of

information.  Not to mention a few computers and telephones.

J. Barlow, supra, at 14.  Similar numbers were reported in Leccese,

"Hackers under Attack," supra, at 9. 

FN7.  It would be impossible to exaggerate the frequency with which

computer information banks containing private information of third parties

are seized, ostensibly in search of criminal evidence.  A greenhouse owner

in Indiana, charged with aiding and abetting in the cultivation of

marijuana, had his computer equipment seized.  More bizarre is the story

of the nonprofit California cryogenics organization, whose computer

equipment and cryogenics-related bulletin board were seized and shut down,

in the course of a coroner's office investigation into the whereabouts of

a missing human head.  The organization reportedly initiated litigation

under the Electronic Communications Privacy Act, 18 U.S.C.  2701 et seq.

(discussed infra), and at this writing it appears that the case was

settled after some proceedings.  See Meeks, "The Case of the Missing Head

and the Missing BBS" (available on the WELL, Apr. 12, 1991)(story reported

as originating from BIX's Microbytes newswire, no date given).

FN8.  See e.g., Donovan v. Dewey, 452 U.S. 595 (1981); Zurcher v. Stanford

Daily, 436 U.S. 547, 554-55 (1978); United States v. Kahn, 415 U.S. 143,

157 (1974); See v. City of Seattle, 387 U.S. 541 (1967); Camara v.

Municipal Court, 387 U.S. 523 (1967).

FN9  See Proceedings: Fourth Annual Computer Virus & Security Conference

426P42 (1991).  Kapor and Godwin are, respectively, the President and

Staff Counsel of the Electronic Frontier Foundation, a civil liberties

group headquartered in Cambridge, Massachusetts, dedicated to "civilizing

the electronic frontier."  It "aims to lobby for laws to facilitate public

computer networks, and to help in the legal defense of those it considers

unjustly charged with computer crimes."  See Dyson, "Commentary: Hackers'

Rights," Forbes, Jan. 7, 1991, at 288.  As part of EFF's work, it has

undertaken litigation efforts on behalf of some of the parties described

above who have been subjected to computer searches and seizures (including

Steve Jackson Games and the publisher of Phrack).  EFF also has intervened

as amicus curiae in other cases implicating the constitutional liberties

of bulletin board operators.

FN10.  Similarly, as discussed below, courts and attorneys should be

sensitive to the interests protected by the Fifth and Sixth Amendments,

when the equipment to be seized potentially contains attorney-client

communications and legal work-product.

FN11  Furthermore, Rule 1001(3) holds that an "original" can be "any

print-out or other output readable by sight [and] shown to reflect the

data accurately," which has been taken from a "computer or similar

device."  In view of this, it would seem that the Rules of Evidence have

eliminated the need for many evidentiary disputes over the admissibility

of a transcribed disk (as a supposed "duplicate") in lieu of the entire

"original" computer system's data storage.

FN12.  Plainly, the decisional law has given newspapers and books stronger

and surer protection against government intrusion than it has given to the

broadcast media.  Compare, e.g., Minneapolis Star and Tribune v. C.I.R.,

460 U.S. 575 (1983); Near v. Minnesota, 283 U.S. 697 (1931), with F.C.C.

v. League of Women Voters, 468 U.S. 364 (1984); Red Lion Broadcasting v.

F.C.C., 395 U.S. 367 (1969).  The courts' tolerance for government

interference in broadcasting finds its principal justification in the

notion that "[u]nlike other modes of expression, radio inherently is not

available to all.  That is its unique characteristic, and that is why,

unlike other modes of expression, it is subject to government regulation."

National Broadcasting Co. v. United States, 319 U.S. 190, 226 (1943).  The

N.B.C. Court's observation may have been accurate in the 1940's but it is

not so today.  In the past fifty years we have witnessed a dizzying

proliferation of electronic channels of communication.  It would be a

mistake to assume that there is a scarcity of modes of expression on the

computer networks, and to consequently limit speech in those forums.  See

generally Peretti, "Computer Publication and the First Amendment," 3

Computer Underground Digest #3.09 (Feb. 28, 1991)(available on the WELL

Apr. 12, 1991).

FN13.  It should be pointed out, however, that the ECPA also sets up as

defenses to civil actions under the Act, "good faith reliance" on warrants

or court orders.  See 18 U.S.C.  2707(d)(1).

FN14.  Although the seizure of law office computer systems has not yet

caught on in this country, it seems that it is a only a matter of time

before it does.  In the past decade, we have witnessed wide-ranging

searches through attorneys' client files.  E.g., DeMassa v. Nunez, 747

F.2d 1283 (1984).  Other nations already have extended this procedure to

electronic files.  One example is the case of South African anti-apartheid

attorney Yunus Mahomed.  According to reports, his professional activities

were "directly disrupted by police searches of his office and home in

January and again in February 1989.  On the first occasion computer disks

were removed and later returned.  During the second raid, the computer was

removed.  Mr. Mahomed obtained an injunction restraining police from

tampering or retrieving information from the computer unless he is

present."  "Lawyer to Lawyer Network," March 1989 (appeal issued by

Lawyers Committee for Human Rights).

FN15.  See also Baltica-Skandinavia Insurance Co. v. Booth, Potter, Seal &

Co., No. 86-1967, 1987 U.S. Dist. LEXIS 9371 slip op. (E.D.Pa. Oct. 15,

1987), cited in J. Gergacz, supra, at 36 (Mar. 1989 Supp.)(court decided

that document intended to remain confidential when it had been filed

separately with other privileged documents, file was specially marked, and

staff was instructed concerning its confidentiality); Allen v. Burns Fry,

Ltd., No. 83 C 2915, 1987 U.S.Dist. LEXIS 4777, slip op. (N.D.Ill. June 8,

1987), cited in J. Gergacz, supra, at 36 (same).  Generally, in cases

where the client is a corporation, the courts seem to be most willing to

honor the confidential nature of documents which both the attorney and

client took explicit and energetic measures to guard.  Compare Lois

Sportswear U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y.

1985)("Because the client's intent determines whether the communication

was confidential to begin with, such intent must be negated before the

confidentiality can be deemed to have been destroyed and the privilege

surrendered.").