When I think drives, bites and baseball, my thoughts go back to the 1970s, and my dad and I stuffing down hotdogs while watching our hero, Roy White, snagging long drives in left center field in Death Valley or smacking line drives for base hits into right field. Today, drives, bytes and baseball conjure up different thoughts. The Major League Baseball (MLB) steroid scandal disappointed many true-believing baseball fans, but it also revealed a simmering controversy concerning the manner and execution of searches of digital computer evidence, otherwise known as electronically stored information (ESI). Perhaps the debate is best summarized in the question, when can the government seize the haystack to look for the needle? This article will address the significant legal issues involved in this digital search controversy.
Computer Search Issues
Searching for evidence stored on a computer poses a serious threat to the privacy rights of anyone who has used that computer, and a serious challenge to the law enforcement officers executing the search. “Computers are simultaneously file cabinets with millions of files, and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes.”1 Computer searches pose unique demands on law enforcement as compared to searches for weapons, narcotics or other physical objects. A computer search usually involves finding evidence located somewhere in millions if not billions of bytes of data. Further, individuals sophisticated enough to use computers to facilitate their crimes may mislabel directory structures and files, as well as encrypt, password protect, booby-trap, or store incriminating data in various locations on their computers or servers in an effort to evade law enforcement detection. Unallocated space may contain deleted files, log records, relevant emails, among other evidence. Accordingly, law enforcement searches of computers even with advanced search software and hashing technology are usually labor intensive and cannot be conducted and completed at the physical site where the warrant is initially executed.2
