In civil litigation, eDiscovery disputes hardly ever rise to the level of constitutional importance. But in the criminal arena, the rules are different. With good cause, warrants to search computers have been called “the closest things to general warrants we have confronted in the history of the Republic.” P. Ohm, Massive Hard Drives, General Warrants, and the Power of Magistrate Judges, 97 Va. L. Rev. In Brief 1, 11 (2011). Thus, a recent decision from the Supreme Court of Vermont concerning the powers of judicial officers to impose ex ante limitations on computer search warrants is significant for both eDiscovery and Fourth Amendment reasons. In re Appeal of Application for Search Warrant, 2012 VT 102, 2012 Vt. LEXIS 100 (2012).
In 2010, a New York resident reported a suspected identity theft after discovering that somebody had submitted online applications for credit cards in his name. The credit card applications included the victim’s true name and Social Security number, but they included mailing and email addresses that were incorrect. Working with the credit card companies, police ascertained the IP address that was used to submit the credit card applications. The IP address led police to a house in Vermont that was on the same street as the fraudulent mailing address given in the credit card applications. Detectives discovered that the IP address was linked to an unsecured WiFi router, which gave off a signal that was accessible from the house down the street. Police learned that a resident of the house down the street had a name that was similar to the email account given in the credit card application, and they confirmed that the WiFi router up the street had been recently accessed from a computer that bore the suspect’s last name. Based on all this information, detectives requested a warrant to search the computers located in the house down the street.
The warrant application was reviewed by a state judicial officer who, sua sponte, imposed a number of limitations before approving the warrant. First, the warrant noted that a number of people lived in the house that was to be searched; thus, the judicial officer limited the warrant to searching only computers that belonged to the named suspect.
In addition, the judicial officer also imposed ten different restrictions on how any search of the suspect’s computer could be conducted. First, police were barred ex ante from relying on the Fourth Amendment “plain view” doctrine to seize any electronic evidence relating to crimes other than the suspected identity theft. Second, police were ordered to outsource the search to specially trained third parties, who would serve as a “firewall” between the evidence and the police. Third, the third-party searchers were required to redact any non-evidentiary data that was intermingled with relevant data before providing information to the police. Fourth, the third-party searchers were barred from disclosing certain details about their work to prosecutors or investigators. Fifth, the third-party searchers could only use search protocols that were specifically tailored towards uncovering information about the identity theft. Sixth, the third-party searchers were barred from using hashing methodologies (a duplicate identifier commonly used in child pornography investigations) and “similar search tools” absent consent of the court. Seventh, only evidence “relevant to the targeted alleged activities” could be shared with investigators. Eighth, non-responsive data was ordered to be returned to the suspect. Ninth, all remaining copies of electronic data were to be destroyed, absent consent of the court. And tenth, at the end of the process, the police were required to file a return with the court chronicling precisely what data had been obtained, returned, and destroyed. 2012 VT at *7.
Upon obtaining the warrant, police searched the suspect’s house and seized a computer and an iPad. Before undertaking a search of these devices, however, the State filed a petition for mandamus to overturn the restrictions the judicial officer had imposed. The State argued that the judicial officer lacked the authority to impose ex ante restrictions on search methodologies and, in any event, that such restrictions were inappropriate on the merits. The Vermont Defender General and the ACLU both filed amicus briefs in opposition to the petition.
On review of the petition for mandamus, the Vermont Supreme Court affirmed the eDiscovery restrictions imposed by the judicial officer. Concluding that “ex ante instructions are sometimes acceptable mechanisms for ensuring the particularity of a search,” 2012 VT at *27, the court affirmed every single limitation the judicial officer had imposed on the methods for conducting the search, including the third-party “firewall” requirement, the search tool limitations, and the obligation to destroy all data at the end of the investigation. The court analogized such restrictions to more “traditional” contexts, such as warrants that authorize police to search “a room rather than an entire house, or boxes with certain labels rather than an entire warehouse.” Id. To the court, the best way to enable analogous limitations in the electronic context is to limit the methodologies that investigators can use. In the court’s words, “in many cases, the only feasible way to specify a particular ‘region’ of the computer will be by specifying how to search.” Id. at *29.
Although the court affirmed all of the eDiscovery limitations that the judicial officer imposed, the court nevertheless overturned the judicial officer’s ex ante determination that police would not be able to use the Fourth Amendment “plain view” doctrine to access information that was irrelevant to the suspected identify theft. The court held that a judicial officer lacks the constitutional power to abrogate a judicial doctrine by means of a provision in a warrant. The court also noted that the eDiscovery limitations imposed by the judicial officer made such an ex ante abrogation of the plain view doctrine unnecessary; because of these eDiscovery limitations, “[i]nvestigatory personnel will never be in the position to view incriminating evidence unrelated to identify theft offenses” in the first place. Id. at *37.
Privacy advocates should welcome the Supreme Court of Vermont’s decision. The case stands broadly for the proposition that probable cause to search for evidence of a single crime should not give police unfettered access to search every file on a suspect’s computer and every website in the suspect’s browser history. Moreover, beyond the Fourth Amendment context, creative eDiscovery counsel may find practical applications of the Vermont Supreme Court’s decision in civil litigation. Some of the limitations imposed by the judicial officer—in particular, the use of a third-party search team—“provide an intermediate option between straight disclosure and filtering by a special master or a court in camera.” Id. at *56. Thus, such mechanisms might find fruitful application in civil litigation as reasonable compromises in, for example, relevancy or privilege disputes.
