In early March of this year, Google broke its silence and disclosed that it receives approximately three national security letters (NSL’s) each day from the F.B.I. requesting subscriber information of all types. For alleged use only in terrorism type cases, NSL’s have been described as the “fight club” of government surveillance. Think of what we would know about an individual that we met recently if Google revealed just their search engine requests?
Our computers contain a tremendous amount of personal and private information. In addition to cases involving national security, state and federal law enforcement routinely seek search warrants for the personal and work computers of people they investigate for a wide range of cases including drug dealing, mortgage and bank fraud, tax fraud, insider trading and securities fraud, child pornography, and many other white-collar crimes.
But to what extent can law enforcement search your computer and are there any limits to what they can examine? A recent case outlines the search parameters and answers many of these questions while also limiting the overreach of law enforcement search warrants.
In United States v. Schlingloff, ___ F. Supp. ____, 2012 WL 5378148 (Oct. 23, 2012), agents obtained a warrant to search a residence for evidence of passport fraud and harboring an undocumented immigrant. An agent seized Schlingloff’s laptop and later ran a computer software program called the Forensic Tool Kit (or FTK), which indexed/cataloged all files into viewable formats. However, the agent also enabled the Known File Filter (or KFF) alert, which flags files that may be identifiable from a library previously compiled by law enforcement, like child pornography or contraband. The KFF alerted the agent to files containing child pornography. The agent opened the file and then promptly closed it. Afterwards, the agent sought a warrant to search Schlingloff’s laptop specifically for child pornography, and multiple files were found.
In this case, law enforcement exceeded the scope of the warrant. While using the FTK software itself wasn’t a problem, the agent took two steps too far: First, the agent had actively enabled the KFF alert, which wasn’t the software’s default setting. He did this in order to find child pornography, which was completely unrelated to evidence of passport fraud and illegal immigration. Second, upon receiving the alert, the agent actually opened the files to confirm his suspicions. As a result, the search of Schlingloff’s laptop was way too broad and the evidence of child pornography was suppressed.
A search warrant isn’t a “free for all” and doesn’t mean law enforcement can automatically look through each and every file. The warrant has to meet certain requirements. For example, it needs to be specific enough – that’s where the particularity requirement comes in. (For example, a warrant that reads “Computer items to be seized: All files relating to any crimes” doesn’t describe with particularity and won’t be help up in court). Also, law enforcement must stay in the scope of the warrant. So if the warrant is too broad or if law enforcement exceeds the scope of the warrant, an experienced criminal defense attorney will seek to have the evidence suppressed as fruits of an unlawful search. In this age of technology, more than just your home or your car can be subject to search – your computer and its data can be searched as well.
I have represented numerous individuals investigated for crimes involving tax, mortgage and bank fraud, and also child pornography. In these cases, law enforcement normally obtains a warrant to search and seize their personal and work computers. The criminal defense lawyer needs to understand that the search of these computers has limitations so that the client’s rights are fully protected.