Court Decision Regarding Non-Responsive Computer Files

The United States Court of Appeals for the Second Circuit handed down a decision in United States v. Ganias on June 17, 2014. The defendant-appellant of tax evasion argued that the government violated his Fourth Amendment rights when it retained full computer hard-drive duplicates — that included personal financial records not described in the original search warrant — for more than two and a half years. The court held that this was indeed a violation of the Fourth Amendment.

In the decision, Judge Chin states:

The off-site review of these mirror images … is still subject to the rule of reasonableness. See, e.g., Ramirez, 523 U.S. at 71 ("The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant." (citation omitted)). The advisory committee's notes to the 2009 amendment of the Federal Rules of Criminal Procedure shed some light on what is "reasonable" in this context. Specifically, the committee rejected "a presumptive national or uniform time period within which any subsequent off-site copying or review of the media or electronically stored information would take place." Fed. R. Crim. P. 41(e)(2)(B) advisory committee's notes to the 2009 Amendments. The committee noted that several variables -- storage capacity of media, difficulties created by encryption or electronic booby traps, and computer-lab workload -- influence the duration of a forensic analysis and counsel against a "one size fits all" time period. Id. In combination, these factors might justify an off-site review lasting for a significant period of time. They do not, however, provide an "independent basis" for retaining any electronic data "other than [those] specified in the warrant." United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1171 (9th Cir. 2010) (en banc).

The entire decision can be read here.

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