Jeffrey Fisher.
JEFFREY FISHER: Argued in favor of limits on time and extent of searches of electronic devices. (Photo: Jason Doiy/The Recorder)

During the oral argument in Riley v. California, the U.S. Supreme Court case involving warrantless searches of cellphones, a telling exchange took place between Justice Sonia Sotomayor and counsel for the petitioner. The justice queried what happens to seized digital materials after they are searched. Assuming they are not evidence or contraband, are they simply returned to their owner?

Counsel for the petitioner, Jeffrey Fisher, pointed out that the government is now preserving copies of at least some of this seized data in “an ever-growing federal database,” for use “indefinitely into the future.” Hence, he argued for the necessity of search warrants for cell-phones — and by extension any physical or virtual container of electronic data — that will delineate not only the terms of how these vast repositories of information may be searched, but also how, and for how long, their data may be retained.

In its 9-0 decision, the court agreed that a warrant was necessary, acknowledging the need for neutral supervision when these electronic containers of “the privacies of life” are searched.

But the justices did not address the thorny question of the contours of such a warrant. That role is left, for now, to lower courts, and it is no exaggeration to say that this is the new frontier in Fourth Amendment law — which, in the digital age, has become the law of seizure and search (and search again).

Does the government get to keep a perpetual police ribbon around seized electronic data, into which it can dip at will when new investigative leads surface? No, the Second Circuit emphatically held in June when it vacated the tax conviction of a businessman secured using computer files seized by warrant in connection with an earlier fraud investigation.

In United States v. Ganias, the government retained the seized documents for more than two years before it used them to commence the instant prosecution. The court held that although practical considerations may permit imaging computer data for off-site review, “the government clearly violated Ganias’ Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.” The court said the government’s practice, if unchecked, would essentially transform every warrant to search for particular electronic data into a general one.

Not only are courts developing nuanced responses to this issue at the back end when the government seeks to use retained data, as in Ganias, but at the point of collection, too — an issue that takes on greater resonance when one considers the decadelong battles of the defendant in Ganias. Earlier this year, U.S. Magistrate Judge John Facciola rejected a series of proposed search warrants for the contents of cellphones because they failed to contain a “search protocol” addressing such questions as whether the devices would be imaged and if so, how long the images of the devices would be stored, whether the search would be conducted by a wall team of agents, what procedures would be followed to minimize viewing of material not in the scope of the warrant, and “with respect to any data that has been seized but is outside the scope of the warrant, [whether] such information [would] be returned, destroyed, or kept indefinitely?”

Citing Facciola’s decisions, Magistrate Judge David Waxse in Kansas ­similarly rejected a search-warrant application for the contents of a cellphone, finding the government’s “search ­methodology” ­violated the warrant requirements of overbreadth and particularity. The government’s actions, Waxse found, resulted in “the overseizure of data and indefinite storage of data that [the government] lacks probable cause to seize” and was “nothing more than a ‘general, exploratory rummaging in a person’s belongings.’ ” In another decision, a district judge rejected as impractical Facciola’s novel approach to the searches of email accounts, which would have required the email host, in the first instance, to cull the relevant emails.

In his concurring opinion in Riley, Justice Samuel Alito urged legislation akin to Title III, or the Wiretap Act, to address issues of technological privacy. His reference to the wiretapping statute is apt. The review of the kinds of intimate communications and thought processes stored electronically is essentially a form of retrospective eavesdropping. It is one thing for the government to pinpoint and overhear criminal conversations, but as one senator remarked during the debate on Title III, “[w]hen the government overhears clients talking to their attorneys, husbands to their wives, ministers to their penitents, patients to their doctors, or just innocent people talking to other innocent people, it is clearly playing an ‘ignoble part.’ “

Thus, Title III contains an intricate scheme to balance privacy interests with investigatory needs. It requires that a wiretap warrant be premised not just on the traditional probable-cause standard, but also that it is necessary (i.e. other investigative means have been exhausted), limited to certain predicate offenses and subject to the minimization of nonpertinent conversations. This latter requirement is arguably at the core of Title III’s protections. Agents must monitor the calls contemporaneously and stop “seizing” them as soon as their noncriminal nature is apparent. In this way, the purely personal calls are (theoretically, at least) never recorded.

When it comes to searches of electronic data, which are no less (and arguably, more) invasive than wiretapping, the information, of course, is already recorded. But as Ganias and the decisions by Facciola and Waxse illustrate, in fulfilling their obligation to give meaning to the overbreadth, particularity and reasonableness requirements of the Fourth Amendment, courts can — and indeed must — fashion procedures to replicate Title III’s minimization protocol in the e-search arena.