Monday, June 30, 2014

How do modern electronics affect 18th Century constitutional protections?

This case raises questions about the Fourth Amendment and the right to a fair trial in the Internet age, where everyone is posting everything online, and our personal computers contain more information than the Founding Fathers could have imagined.

The case is United States v. Ganais, decided on June 17. The defendant is an accountant. The government suspected that some of his clients were evading the tax laws, so it seized defendant's computer under a warrant. The government then copied his hard drive onto DVD's and held onto his personal and professional files for a long time, taking the position that this was government, and not defendant's, property. At some point, the government began to suspect that defendant himself was breaking the tax laws. The government then obtained a warrant to review defendant's computer files and he got indicted and then convicted for conspiracy and tax evasion.

The conviction is overturned because the search was illegal. The Court of Appeals (Chin, Restani [D.J.] and Hall [dissenting]) notes that computers these days hold a ton of material and that it is impracticable for the government to review everything at the suspect's office. So the government can copy the entire hard drive and review the material separately. That practice does not violate the Fourth Amendment. What does violate the Constitution is independently reviewing the material that falls outside the scope of the warrant. In this case of first impression, the Second Circuit finds that the Fourth Amendment prevents the government from seizing a computer and then indefinitely retaining every file for use in future criminal investigations.

As the government held onto defendant's computer files for over two years -- files that fell outside the scope of the warrant -- this was a Fourth Amendment seizure. That seizure was unreasonable, triggering the exclusionary rule analysis. Not every unlawful seizure requires the exclusion of that evidence. This one does, because the government held onto the files in bad faith (it was required to purge the non-responsive data) and the social benefits of deterring government behavior are great in light of its increased use of forensic mirror images of computer files and the need to deter the unconstitutional handling of non-responsive data. Also, the costs of suppression are minimal in this case because "this is not a case where a dangerous defendant is being set free."

The Court also takes on another issue that is ripe for the modern age: the jury's use of social media during trial. One juror posted trial-related observations on Facebook during trial and also friended another juror during trial. One of the Facebook postings said the juror might get to hang someone. Another said the trial was too boring and "someone get me outta here." When defendant found out about this post-trial, he moved for a new trial, but the trial court interviewed the juror and found that the Facebook stuff did not prejudice defendant's rights. The Court of Appeals affirms that finding but suggests that district courts instruct the jury before, during and after trial not the pull this kind of crap on social media.

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