Federal Guidelines

US Department of Justice 
Criminal Division 
Office of Professional Development and Training


Federal Guidelines For Searching
and Seizing Computers

July 1994


PREFACE

These Guidelines are the product of an interagency group, informally
called the Computer Search and Seizure Working Group. Its members were
lawyers, agents, and technical experts from the Federal Bureau of
Investigation; the United States Secret Service; the Internal Revenue
Service; the Drug Enforcement Administration; the United States Customs
Service; the Bureau of Alcohol, Tobacco, and Firearms; the United States
Air Force; the Department of Justice; and United States Attorneys'
offices. Most of us have consulted widely within our own agencies to find
the diversity of opinion on these topics. Our object was to offer some
systematic guidance to all federal agents and attorneys as they wrestle
with cases in this emerging area of the law. These Guidelines have not
been officially adopted by any of the agencies, and are intended only as
assistance, not as authority. They have no regulatory effect, and confer
no right or remedy on anyone. Moreover, the facts of any particular case
may require you to deviate from the methods we generally recommend, or
may even demand that you try a completely new approach.

Many of our recommendations must be tentative, because there is often so
little law directly on point. As the law develops and as technology
changes (thereby altering or even transforming our assumptions), the
Working Group may well find itself a Standing Committee with open
membership.

If you have any comments, corrections, or contributions, please contact
Marty Stansell-Gamm at the Computer Crime Unit, General Litigation
Section, Department of Justice (202-514-1026). As you confront these
issues in your practice, we will be eager to hear about your experience
and to assist in any way we can.

Scott C. Charney, Chief, Computer Crime Unit

Martha J. Stansell-Gamm
 Computer Crime Unit
 Chair, Computer Search and Seizure Working Group

General Litigation and Legal Advice Section Criminal Division Department
of Justice


TABLE OF CONTENTS

INTRODUCTION ...................................................1


I. KEY TERMS AND CONCEPTS

A. DEFINITIONS ................................................ 3 
B. LIST OF COMPUTER SYSTEM COMPONENTS ......................... 5 
C. DETERMINING THE COMPUTER'S ROLE IN THE OFFENSE ............. 7

II. GENERAL PRINCIPLES

A. SEARCH WARRANTS ............................................ 9 
B. PLAIN VIEW ................................................. 9 
C. EXIGENT CIRCUMSTANCES ...................................... 9 
D. BORDER SEARCHES ............................................ 12 
E. CONSENT SEARCHES . . . . . . . . . . . . . . . . . . . . . . 13
   1. Scope of the Consent .................................... 13

   2. Third-Party Consent ......................................14
      a. General Rules ........................................ 14
      b. Spouses  . . . . . . . . . . . . . . . . . . . . . . . 17
      c. Parents  . . . . . . . . . . . . . . . . . . . . . . . 17
      d. Employers  .. . . .. . . .. . . .. . . . .. . . . .. . 18
      e. Networks: System Administrators ...................... 22

F. INFORMANTS AND UNDERCOVER AGENTS ........................... 24

[page ii]


III. SEIZING HARDWARE

A. THE INDEPENDENT COMPONENT DOCTRINE ......................... 25 
B. HARDWARE AS CONTRABAND OR FRUITS OF CRIME .................. 26

   1. Authority for Seizing Contraband or Fruits of Crime ..... 26
   2. Contraband and Fruits of Crime Defined .................. 27

C. HARDWARE AS AN INSTRUMENTALITY OF THE OFFENSE .............. 28

   1. Authority for Seizing Instrumentalities ................. 28
   2. Instrumentalities Defined ............................... 28

D. HARDWARE AS EVIDENCE OF AN OFFENSE ......................... 30

   1. Authority for Seizing Evidence .......................... 30
   2. Evidence Defined ........................................ 30

E. TRANSPORTING HARDWARE FROM THE SCENE ....................... 31


IV. SEARCHING FOR AND SEIZING INFORMATION

A. INTRODUCTION ............................................... 35 
B. INFORMATION AS CONTRABAND .................................. 36 
C. INFORMATION AS AN INSTRUMENTALITY .......................... 36 
D. INFORMATION AS EVIDENCE .................................... 37

   1. Evidence of Identity .................................... 38
   2. Specific Types of Evidence .............................. 39
      a. Hard Copy Printouts .................................. 39
      b. Handwritten Notes .................................... 40

E. PRIVILEGED AND CONFIDENTIAL INFORMATION ........... .. . . . 40

   1. In General .............................................. 40


      a. Doctors, Lawyers, and Clergy ......................... 41
      b. Publishers and Authors ............................... 41
   2. Targets ................................................. 42
   3. Using Special Masters ................................... 43 

[page iii] 

F. UNDERSTANDING WHERE THE EVIDENCE MIGHT BE: STAND-ALONE
   PCs, NETWORKS AND FILE-SERVERS, BACKUPS, ELECTRONIC BULLETIN
    BOARDS, AND ELECTRONIC MAIL................................ 43


    1. Stand-Alone PCs......................................... 43

      a. Input/Output Devices: Do Monitors, Modems, Printers, and
Keyboards
         Ever Need to be Searched? ............................ 44
      b. Routine Data Backups.................................. 46

    2. Networked PCs........................................... 46

       a. Routine Backups ..................................... 48
       b. Disaster Backups..................................... 49

G. SEARCHING FOR INFORMATION .................................. 49

   1. Business Records and Other Documents .................... 49
   2. Data Created or Maintained by Targets ................... 50

   3. Limited Data Searches ................................... 51
   4. Discovering the Unexpected .............................. 53

      a. Items Different from the Description in the Warrant .. 53
      b. Encryption ........................................... 54

H. DECIDING WHETHER TO CONDUCT THE SEARCH ON-SITE OR TO
   REMOVE HARDWARE TO ANOTHER LOCATION ........................ 55

   1. Seizing Computers because of the Volume of Evidence ..... 56

      a. Broad Warrant Authorizes Voluminous Seizure of Documents
                                         ...............        56

      b. Warrant is Narrowly Drawn but Number of Documents to be
         Sifted through is Enormous ........................... 58
      c. Warrant Executed in the Home ......................... 59
      d. Applying Existing Rules to Computers ................. 60

    2. Seizing Computers because of Technical Concerns ........ 61

      a. Conducting a Controlled Search to Avoid Destroying Data 61
      b. Seizing Hardware and Documentation so the System Will Operate
         at the Lab ................................................ 62

I.      EXPERT ASSISTANCE .......................................... 63

        1. Introduction ............................................ 63
        2. Finding Experts ......................................... 64
           a. Federal Sources....................................... 65
           b. Private Experts....................................... 66
              (1) Professional Computer Organizations............... 66
              (2) Universities...................................... 67
              (3) Computer and Telecommunications Industry Personnel 67
              (4) The Victim ....................................... 67
        3. What the Experts Can Do ................................. 68

           a. Search Planning and Execution ........................ 68
           b. Electronic Analysis .................................. 68

[page iv]
       c. Trial Preparation .................................... 69
       d. Training for Field Agents ............................ 70

V. NETWORKS AND BULLETIN BOARDS

A. INTRODUCTION ..................................................... 71

B.      THE PRIVACY PROTECTION ACT, 42 U.S.C.  2000aa ................72
        1. A Brief History of the Privacy Protection Act .............72
        2. Work Product Materials ....................................73

        3. Documentary Materials .....................................77
        4. Computer Searches and the Privacy Protection Act ..........78
           a. The Reasonable Belief Standard .........................79
           b. Similar Form of Public Communication ...................82
           c. Unique Problems: Unknown Targets and Commingled Materials
                                                                   ...83
        5. Approval of Deputy Assistant Attorney General Required ....84

C. STORED ELECTRONIC COMMUNICATIONS ..................................85

VI. DRAFTING THE WARRANT

A. DRAFTING A WARRANT TO SEIZE HARDWARE ............................. 91

B. DRAFTING A WARRANT TO SEIZE INFORMATION .......................... 92
   1. Describing the Place to be Searched ........................... 92

      a. General Rule: Obtain a Second Warrant ...................... 93
      b. Handling Multiple Sites within the Same District ........... 93
      c. Handling Multiple Sites in Different Districts ............. 94
      d. Information at an Unknown Site ............................. 95
      e. Information/Devices Which Have Been Moved .................. 96
   2. Describing the Items to be Seized ............................. 97
   3. Removing Hardware to Search Off-Site: Ask the Magistrate for
Explicit
      Permission..................................................... 99
   4. Seeking Authority for a No-Knock Warrant ..................... 100

      a. In General ................................................ 100
      b. In Computer-Related Cases ................................. 101
[page v]

VII. POST-SEARCH PROCEDURES

A. INTRODUCTION .....................................................103

B. PROCEDURES FOR PRESERVING EVIDENCE ........................  104
   1. Chain of Custody .......................................  104
   2. Organization ...........................................  104
   3. Keeping Records ........................................  105

   4. Returning Seized Computers and Materials ...............  105
      a. Federal Rules of Criminal Procedure: Rule 41(e) .....  106
      b. Hardware ............................................  109
      c. Documentation .......................................  110
      d. Notes and Papers ....................................  110

      e. Third-Party Owners ..................................  111

VIII. EVIDENCE

A. INTRODUCTION ..............................................  113

B. THE BEST EVIDENCE RULE ....................................  114

C. AUTHENTICATING ELECTRONIC DOCUMENTS .......................  115
   1. "Distinctive" Evidence ...............................    116

   2. Chain of Custody .......................................  119
   3. Electronic Processing of Evidence ......................  120

D. THE HEARSAY RULE ..........................................  122

IX APPENDICES

APPENDIX A: SAMPLE COMPUTER LANGUAGE FOR SEARCH WARRANTS ...... 125
  1. Tangible Objects ....................................      125
     a. Justify Seizing the Objects ......................      125

     b. List and Describe the Objects ....................      126
        (1) Hardware . . . . . . . . . . . . . . . . . ...... . 127
        (2) Software .....................................      127
        (3) Documentation  . . . . . . . . . . . . . . ...... . 128
        (4) Passwords and Data Security Devices ..........      128 

[page vi]
  2. Information: Records, Documents, Data ...............      128
     a. Describe the Content of Records, Documents, or other 
         Information                                        ... 129
     b. Describe the Form which the Relevant Information May Take 
                                                            ........ 130

     c. Electronic Mail: Searching and Seizing Data from a BBS Server
   under 18 U.S.C.  .................................................131
          (1) If All the E-Mail is Evidence of Crime ............... 131
          (2) If Some of the E-Mail is Evidence of Crime ........... 132
          (3) If None of the E-Mail is Evidence of Crime ........... 132
      d. Ask Permission to Seize Storage Devices when an Off-Site Search
is Necessary . . . . . . . . . . . . . . . . . . . . . . . . . .. . .133
      e. Ask Permission to Seize, Use, and Return Auxiliary Items, as
Necessary ...........................................................134
      f. Data Analysis Techniques .................................. 135
3. Stipulation for Returning Original Electronic Data .............. 135

APPENDIX B: GLOSSARY ............................................... 139

APPENDIX C: FEDERAL EXPERTS FOR COMPUTER CRIME INVESTIGATIONS....... 143

APPENDIX D: COMPUTER SEARCH AND SEIZURE WORKING GROUP ...............145

APPENDIX E: STATUTORY POPULAR NAME TABLE.............................153

APPENDIX F:  TABLE OF AUTHORITIES .................................. 155

             Cases ...  . . . . . . . . . . . . . . . . . . . . .  . 155
             Statutes  . . . . . . . . . . . . . . . . . . . . . . . 162
             Federal Rules ..........................................162
             Federal Regulations ....................................163
             Legislative History . . . . . . . . . . . . . . . . . . 163
             Reference Materials ....................................164
[page a]



INTRODUCTION

  As computers and telecommunications explode into the next century,
prosecutors and agents have begun to confront new kinds of problems.
These Guidelines illustrate some of the ways in which searching a
computer is different from searching a desk, a file cabinet, or an
automobile. For example, when prosecutors must interpret Rule 41 (which
requires that the government obtain a search warrant in the district
where the property to be searched is "located"), applying it to searches
of physical items is usually uncomplicated. But when they must try to
"locate" electronic data, the discussion can quickly become more
metaphysical than physical.
 Even so, it is important to remember throughout the process that as
dazzling and confounding as these new-age searches and seizures may be,
they are in many essential ways just like all other searches. The cause
must be just as probable; the description of items, just as particular.
The standard investigative techniques that work in other cases (like
finding witnesses and informants) are just as valuable in computer cases.
The evidence that seals a case may not be on the hardware or software,
but in an old-fashioned form: phone bills, notes in the margins of
manuals, or letters in a drawer.
 The sections that follow are an integration of many legal sources,
practical experiences, and philosophical points of view. We have often
had to extrapolate from existing law or policies to try to strike old
balances in new areas. We have done our best to anticipate the questions
ahead from the data available today. Even so, we recognize that rapid
advances in computer and telecommunications technologies may require that
we revisit these Guidelines,~perhaps in the near future. In the meantime,
as law struggles to catch up to technology, it is important to remember
that computer cases are just like all others in one respect at least:
under all the "facts and circumstances," there is no substitute for
reasonable judgment.

[no page 2] [page 3]


I. KEY TERMS AND CONCEPTS

 Searching and seizing computers raises unique issues for law enforcement
personnel. Before addressing these issues, however, it is important to
have a basic understanding of key terms and fundamental concepts that
will influence the government's search and seizure decisions. This
section describes these central terms and concepts. A more complete
glossary can be found at APPENDIX B, p. 139.

A. DEFINITIONS

When people speak of searching or seizing computers, they usually are not
referring only to the CPU (Central Processing Unit). After all, a
computer is useless without the devices that allow for input (e.g., a
keyboard or mouse) and output (e.g., a monitor or printer) of
information. These devices, known as "peripherals,"' are an integral part
of any "computer system."

Failure to more specifically define the term "computer" may cause
misunderstandings. Having probable cause to seize a "computer" does not
necessarily mean there is probable cause to seize the attached printer.
Therefore, we need to be clear about our terms.

1. Hardware -- "The physical components or equipment that make up a
computer system...." Webster's Dictionary of Computer Terms 170 (3d ed.
1988). Examples include keyboards, monitors, and printers.

2. Software -- "The programs or instructions that tell a computer what to
do." Id. at 350. This includes system programs which control the internal
operation of the computer system (such as Microsoft's Disk Operating
System, "MS-DOS," that controls

 _________________________

1 Peripheral equipment means "[t]he input/output units and auxiliary
storage units of a computer system, attached by cables to the central
processing unit." Webster's Dictionary of Computer Terms 279 (3d ed.
1988).

[page 3]

IBM-compatible PCs) and applications programs which enable the computer
to produce useful work (e.g., a word processing program such as
WordPerfect).

3. Data -- "A formalized representation of facts or concepts suitable for
communication, interpretation, or processing by people or by automatic
means." Id. at 84. Data is often used to refer to the information stored
in the computer.

4. Documentation -- Documents that describe technical specifications of
hardware components and/or software applications and how to use them.

5. Input/Output (I/O) Device -- A piece of equipment which sends data to,
or receives data from, a computer. Keyboards, monitors, and printers are
all common I/O devices.

6. Network -- "A system of interconnected computer systems and
terminals." Id. at 253.

7. System Administrator (or System Operator, "sysop") -- The individual
responsible for assuring that the computer system is functioning
properly. He is often responsible for computer security as well.

For search and seizure purposes, unless the text specifically indicates
otherwise, the term "computer" refers to the box that houses the CPU,
along with any internal storage devices (such as internal hard drives)
and internal communications devices (such as an internal modem or fax
card). Thus, "computer" refers to the hardware, software, and data
contained in the main unit. Printers, external modems (attached by cable
to the main unit), monitors, and other external attachments will be
referred to collectively as "peripherals" and discussed individually
where appropriate. When we are referring to both the computer and all
attached peripherals as one huge package, we will use the term "computer
system." "Information" refers to all the information on a computer
system, including both software applications and data.

It is important to remember that computer systems can be configured in an
unlimited number of ways with assorted input and output devices. In some
cases, a specific device may have particular evidentiary value (e.g., if
the case involves

[page 5] a bookie who prints betting slips, the printer may constitute
valuable evidence); in others, it may be the information stored in the
computer that may be important. In either event, the warrant must
describe, with particularity, what agents should search for and seize.

B. LIST OF COMPUTER SYSTEM COMPONENTS

The following is an abridged list of hardware components which may play a
role in a criminal offense and, therefore, be subject to search and
seizure under warrant. For a more extensive list, see the "GLOSSARY" at
APPENDIX B, p. 139. It is important to remember that electronic
components are constantly changing, both in nature and in number, and no
list can be comprehensive.

Device Name          Description

CPU:    The central processing unit.

Hard Disk Drive:        A storage device based on a fixed, permanently
mounted disk drive. It may be either internal or external. Both
applications and data may be stored on the disk.

Floppy Disk Drive:      A drive that reads from or writes to floppy
diskettes. Information is stored on the diskettes themselves, not on the
drive.

Mouse:  A pointing device that controls input. Normally, the user points
to an object on the screen and then presses a button on the mouse to
indicate her selection.

Modem:  A device allowing the computer to communicate with another
computer, normally over standard telephone lines. Modems may be either
external or internal.


[page 6] Fax Peripheral: A device, normally inserted as an internal card,
that allows the computer to function as a fax machine.

CD ROM: CD ROM stands for Compact Disk Read-Only Memory. CD ROMs store
and read massive amounts of information on a removable disk platter.
Unlike hard drives and diskettes, CD ROMs are read-only and data cannot
be written to the platter.

Laser Disk:     Similar to a CD ROM drive but uses lasers to read and
write information.

Scanner:        Any optical device which can recognize characters on
paper and, using specialized software, convert them into digital form.

Printer:        A number of technologies exist, using various techniques.
The most common printers are:

1. Dot matrix - characters and graphics are created by pins hitting the
ribbon and paper;

2. Laser - electrostatically charges the printed page and applies toner;

3. Ink jet - injects (sprays) ink onto the paper;

4. Thermal - a hot printer head contacts special paper that reacts to
heat;

5. Band - a rotating metal band is impacted as it spins;

6. Daisy wheel - a small print wheel containing the form of each
character rotates and hits the paper, character by character; [page 7]

7. Plotter - moves ink pens over the paper surface, typically used for
large engineering and architectural drawings.

C. DETERMINING THE COMPUTER'S ROLE IN THE OFFENSE

Before preparing a warrant to seize all or part of a computer system and
the information it contains, it is critical to determine the computer's
role in the offense. First, the computer system may be a tool of the
offense. This occurs when the computer system is actively used by a
defendant to commit the offense. For example, a counterfeiter might use
his computer, scanner, and color printer to scan U.S. currency and then
print money. Second, the computer system may be incidental to the
offense, but a repository of evidence. For example, a drug dealer may
store records pertaining to customers, prices, and quantities delivered
on a personal computer, or a blackmailer may type and store threatening
letters in his computer.

In each case, the role of the computer differs. It may constitute "the
smoking gun" (i.e., be an instrumentality of the offense), or it may be
nothing more than an electronic filing cabinet (i.e., a storage device).
In some cases, the computer may serve both functions at once. Hackers,
for example, often use their computers both to attack other computer
systems and to store stolen files. In this case, the hacker's computer is
both a tool and storage device. Whatever the computer's role in each
case, prosecutors must consider this and tailor warrants accordingly.

By understanding the role that the computer has played in the offense, it
is possible to focus on certain key questions:

Is there probable cause to seize hardware?

Is there probable cause to seize software?

Is there probable cause to seize data?

[page 8]

Where will this search be conducted? Is it practical to search the
computer system on site, or must the examination be conducted at a field
office or laboratory?

If agents remove the system from the premises to conduct the search, must
they return the computer system, or copies of the seized data, to its
owner/user before trial?

Considering the incredible storage capacities of computers, how will
agents search this data in an efficient, timely manner?

Before addressing these questions, it is important to recognize that
general Fourth Amendment principles apply to computer searches, and
traditional law enforcement techniques may provide significant evidence
of criminal activity, even in computer crime cases. Therefore, we begin
with a brief overview of the Fourth Amendment.

[page 9]



II. GENERAL PRINCIPLES

A. SEARCH WARRANTS

There is, of course, "a strong preference for warrants," and courts will
scrutinize a warrantless search. Indeed, as the Supreme Court indicated
in United States v. Leon, 468 U.S. 897, 914 (1984), a warrant can save a
search where probable cause is doubtful or marginal. Most searches of
computer systems will be pursuant to warrant, but the recognized
exceptions to the warrant requirement apply equally to the search and
seizure of computers.

B. PLAIN VIEW

Evidence of a crime may be seized without a warrant under the plain view
exception to the warrant requirement. To rely on this exception, the
officer must be in a lawful position to observe the evidence, and its
incriminating character must be immediately apparent. See Horton v.
California, 496 U.S. 128 (1990). For example, if agents with a warrant to
search a computer for evidence of narcotics trafficking find a long list
of access codes taped to the computer monitor, the list should also be
seized.

C. EXIGENT CIRCUMSTANCES

"When destruction of evidence is imminent, a warrantless seizure of that
evidence is justified if there is probable cause to believe that the item
seized constitutes evidence of criminal activity." United States v.
David. 756 F. Supp. 1385, 1392 (D. Nev. l991).2 If a target's screen is
displaying evidence

-------------------------- 2 See also United States v. Talkington, 875
F.2d 591 (7th Cir. 1989) (warrantless entry to residence and seizure of
counterfeit money was justified since agents knew that (1) the suspects
had previously discussed burning money; (2) there was a fire in the
backyard: and (3) the agents were confident that residents were not
having a cookout.

[page 10]



 which agents reasonably believe to be in danger, the "exigent
circumstances" doctrine would justify downloading the information before
obtaining a warrant. For example, agents may know that the incriminating
data is not actually stored on the suspect's machine, but is only
temporarily on line from a second network storage site in another
building, city, or district. Thus, even if the agents could secure the
target's computer in front of them, someone could still electronically
damage or destroy the data -- either from the second computer where it is
stored or from a third, unknown site. Of course, when agents know they
must search and seize data from two or more computers on a wide-area
network, they should, if possible, simultaneously execute separate search
warrants. (See "Describing the Place to be Searched," infra p. 92.) But
sometimes that is not possible, and agents must then analyze the
particular situation to decide whether the "exigent circumstances"
exception applies. In computer network cases, as in all others, the
answer is absolutely tied to the facts.

In determining whether exigent circumstances exist, agents should
consider: (1) the degree of urgency involved, (2) the amount of time
necessary to obtain a warrant, (3) whether the evidence is about to be
removed or destroyed, (4) the possibility of danger at the site, (5)
information indicating the possessors of the contraband know the police
are on their trail, and (6) the ready destructibility of the contraband.
United States v. Reed, 935 F.2d 641, 642 (4th Cir.), cert. denied, 112 S.
Ct. 423 (1991).

Under the "exigent circumstances" exception to the warrant requirement,
agents can search without a warrant if the circumstances would cause a
reasonable person to believe it to be necessary. The Supreme Court has
upheld warrantless entries and searches when police officers reasonably
believe that someone inside needs "immediate aid," Mincey v. Arizona, 437
U.S. 385, 392~-93 (1978), or to prevent the destruction of relevant
evidence, the escape of a suspect, or the frustration of some other
legitimate law enforcement objective. United States v. Arias, 923 F.2d
1387 (9th Cir.), cert. denied, 112 S. Ct. 130 (1991). The officer's fears
need not be correct so long as they are reasonable. See United States v.
Reed, supra (proper inquiry is what objective officer could reasonably
believe).

[page 11]

Recognizing the strong preference for warrants, courts have suppressed
evidence where the officers had time to get a warrant but failed to do
so. United States v. Houle, 603 F.2d 1297 (8th Cir. 1979). Some courts
have even ruled that exigent circumstances did not exist if the law
enforcement officers had time to obtain a warrant by telephone. United
States v. Patino, 830 F.2d 1413, 1416 (7th Cir. 1987)(warrantless search
not justified when officer had adequate opportunity to obtain telephone
warrant during 30-minute wait for backup assistance; not permissible for
agents to wait for exigency and then exploit it), cert. denied, 490 U.S.
1069 (1989).

Additionally, while exigencies may justify the seizure of hardware (i.e.,
the storage device), this does not necessarily mean that they support a
warrantless search. In United States v. David, 756 F. Supp. 1385 (D. Nev.
1991), the court held that although the agent was correct to seize the
defendant's computer memo book without a warrant (because the agent saw
him deleting files), the agent should have gotten a search warrant before
re~accessing and searching the book. The court held the exigencies
allowed the agent to take the computer memo book but, once taken, there
was time to get a warrant to look inside. Therefore, the seized evidence
had to be suppressed. Id. at 1392.

This holding is, of course, analogous to cases which address other kinds
of containers. In the David case, the computer book itself was not
contraband, instrumentality, fruit, or evidence of crime. It was,
instead, a small file cabinet, a locked box, a container of data. The
agent was not interested in the hardware but in the information inside.
As the cases make clear, authority to seize a container does not
necessarily authorize a warrantless search of the container's contents.
See Texas v. Brown, 460 U.S. 730, 750 (1983)(Stevens, J.,
concurring)(plain view justified seizure of party balloon but additional
justification was required to open balloon without warrant). Courts have
suppressed warrantless searches when the defendant still had a reasonable
expectation of privacy in the contents of the container. See United
States v. Turk, 526 F.2d 654 (5th Cir.)(although seizure of tape was
proper, playing taped conversation of private telephone communication was
not), cert. denied, 429 U.S. 823 (1976); Blair v. United States, 665 F.2d
500 (4th Cir. 1981).

Agents must always remember, however, that electronic data is perishable.
Humidity, temperature, vibrations, physical mutilation, magnetic fields
created by passing a strong magnet over a disk, or computer commands
(such as "erase *.*" or "format") can destroy data in a matter of
seconds. [page 12]

Thus, the exigent circumstances doctrine may justify a warrantless
seizure in appropriate cases.

D. BORDER SEARCHES

The law recognizes a limited exception to the Fourth Amendment's probable
cause requirement at the nation's borders. Officials may search people
and property without a warrant and without probable cause as a condition
of crossing the border or its "functional equivalent." United States v.
Ramsey, 431 U.S. 606 (1977), cert. denied, 434 U.S. 1062 (1978). Both
incoming international baggage (United States v. Scheer, 600 F.2d 5 (3d
Cir. 1979) and incoming international mail at the border are subject to
search without a warrant to determine whether they contain items which
may not lawfully be brought into the country. Border searches or
international mail searches of diskettes, tapes, computer hard drives
(such as laptops carried by international travelers), or other media
should fall under the same rules which apply to incoming persons,
documents, and international mail.

On the other hand, the border search exception to the warrant requirement
probably will not apply to data transmitted electronically (or by other
non-physical methods) into the United States from other countries. For
example, if an individual in the United States downloads child
pornography from a foreign BBS, a warrantless search of his home computer
could not be supported by the border search exception. In such cases, it
is difficult to find a "border" or its functional equivalent as data
travels over international telephone lines or satellite links. What seems
clear, however, is that once data has been received by a computer within
the United States, that data resides in the country and has passed beyond
the border or its functional equivalent. Because the justification for
the border search exception is grounded on the sovereign's power to
exclude illegal articles from the country, that exception no longer
applies once such articles (in this case electronic data) have come into
the country undetected.

[page 13] E. CONSENT SEARCHES

Agents may search a place or object without a warrant or, for that
matter, without probable cause, if a person with authority has consented.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). This consent may be
explicit or implicit. United States v. Milan-Rodriguez, 759 F.2d 1558,
1563-64 (11th Cir.)(telling police where to find a key constitutes
implicit consent to a search of the locked area), cert. denied, 474 U.S.
845 (1985), and cert. denied, 486 U.S. 1054 (1988).

Whether consent was voluntarily given is a question of fact which the
court will decide. United States v. Scott, 578 F.2d 1186, 1189 (6th
Cir.), cert. denied, 439 U.S. 870 (1978). The burden is on the government
to prove that the consent was voluntary, United States v. Price, 599 F.2d
494, 503 (2nd Cir. 1979), and, in making its decision, the court will
consider all the facts surrounding the consent. Schneckloth, supra, at
226-7; United States v. Mendenhall, 446 U.S. 544, 557-8 (1980). See
generally United States v. Caballos, 812 F.2d 42 (2d Cir. 1987). While no
single aspect controls the result, the Supreme Court has identified the
following important factors: the age of the person giving consent; the
person's education, intelligence, mental and physical condition; whether
the person was under arrest; and whether he had been advised of his right
to refuse consent. Schneckloth, supra, at 226.

In computer crime cases, several consent issues are likely to arise.
First, did the scope of the search exceed the consent given? For example,
what if a target consents to a search of his machine, but the data is
encrypted? Does his consent authorize breaking the encryption scheme?
Second, who is the proper party to consent to a search? Does a system
administrator have the authority to consent to a search of a file server
containing the files of all the system users?

1. Scope of the Consent

A person who consents to a search may explicitly limit this consent to a
certain area. United States v. Griffin, 530 F.2d 739, 744 (7th Cir.
1976). When the limits of the consent are clearly given, either at the
time of the search or even afterwards, agents must respect their bounds.
In Vaughn v. Baldwin,

[page 14]

950 F.2d 331 (6th Cir. 1991), the plaintiff dentist had voluntarily
turned over records to the IRS. The IRS agent kept the records for months
and refused several informal requests for their return. Plaintiff then
formally, in writing, revoked his consent to the IRS, which still kept
the records to make copies. Finally, plaintiff sued and the IRS returned
the originals but kept the copies. The court found that the IRS had
violated the Fourth Amendment. Although the IRS was entitled to copy the
records while they lawfully had them, they could not keep the records
once plaintiff revoked his consent. Moreover, considering the long period
of time that the IRS held the documents, the court rejected the argument
that once the plaintiff demanded return of his documents the government
should be entitled to retain them for a reasonable period for copying.

Consent may also be limited implicitly. In United States v. David, 756 F.
Supp. 1385 (D. Nev. 1991), the court held that while the defendant had
consented, pursuant to a cooperation agreement, to share some of the
information contained in his hand-held computer memo book, his attempt to
prevent agents from seeing the file password constituted a limit on his
consent. Although the agent did nothing wrong by leaning over defendant's
shoulder to watch him enter the password, the government clearly exceeded
the implicit limits of David's consent when agents used the password to
read the whole computer book without David's permission. For a more
extensive discussion of encryption issues, see, infra p. 54.

2. Third-Party Consent

a. General Rules

It is not uncommon for several people to use or own the target computer
equipment. If any one of those people gives permission to search for
data, agents may generally rely on that consent, so long as that person
has authority over the computer. In these cases, all users have assumed
the risk that a co~-user might not just discover everything in the
computer but might also permit law enforcement to discover the "common
area" as well.

[page 15]

In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court
stated that one who has common authority over premises or effects may
consent to a search even if the absent co-user objects. In an important
footnote, the Court said that "common authority" is not a property law
concept but

rests rather on mutual use of the property by persons generally having
joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the
inspection in his own right and that the others have assumed the risk
that one of their number might permit the common area to be searched.

Id. at 171 n.7.

Extending this analysis, a third party with common authority may consent
even if he is antagonistic toward the defendant. One could even argue
that sharing access to a common premises with an unsympathetic person
would objectively increase the risk of disclosure, and thus reasonable
expectations of privacy actually diminish. This is especially true where
the consenting individual agrees to a search of common premises to
exculpate himself from the defendant's criminal activity. See 3 W.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment  8.3(b) at
244-45 (2d ed. 1987). See also United States v. Long, 524 F.2d 660 (9th
Cir. 1975) (wife in fear of her husband could still consent to a search
of the jointly owned house even though she had moved out and he had
changed the locks).

Where two or more people enjoy equal property rights over a place, they
may still have exclusive, private zones within the shared premises.
Housemates with separate bedrooms, spouses with private areas or
containers, and housemates with separate directories on a shared computer
may reasonably expect to own that space alone. But when do these
individual expectations overcome another's common authority over premises
or property? Although there is no bright line test, courts will generally
regard a defendant's claims of exclusive control in this situation with
some skepticism. See Frazier v. Cupp, 394 U.S. 731, 740 (1969).

Even so, courts may honor claims to privacy where the defendant has taken
some special steps to protect his personal effects from the scrutiny of
others, and others lack ready access. 3 W. LaFave, supra  8.3(f), at
259-60. In United States v. Block, 590 F.2d 535 (4th Cir. 1978), the
Fourth Circuit

[page 16]

held that a mother's authority to permit police officers to inspect her
23-year-old son's room did not include his locked footlocker in the room.
The court stated that the authority to consent to search

cannot be thought automatically to extend to the interiors of every
discrete enclosed space capable of search within the area.... Common
experience .... teaches all of us that the law's "enclosed spaces"--
mankind's valises, suitcases, footlockers, strong boxes, etc. -- are
frequently the objects of his highest privacy expectations, and that the
expectations may well be at their most intense when such effects are
deposited temporarily or kept semi-permanently in public places or in
places under the general control of another.

Id. at 541.

In a footnote, however, the Block court noted that not every "enclosed
space" within a room is exempt from the reach of the authorized search
area. A rule of reason applies, one that considers the circumstances
"indicating the presence or absence of a discrete expectation of privacy
with respect to a particular object: whether it is secured, whether it is
commonly used for preserving privacy, etc." Id. at n.8. Cf. United States
v. Sealey, 830 F.2d 1028, 1031 (9th Cir. 1987) (spousal consent valid
because sealed containers were not marked in any way that would indicate
defendant's sole ownership). Thus, creating a separate personal directory
on a computer may not sufficiently mark it as exclusive, but protecting
that separate directory with a secret password may "lock the container."
In that event, if law enforcement analysts search the directory by
breaking the password (because the co-user who consented to the search
did not know that password), a court would probably suppress the result.

Matlock did not address whether a consent search is valid when police
have reasonably, but mistakenly, relied upon the consent of someone who
appeared to have common authority over the premises, but in fact did not.
In Illinois v. Rodriguez, 497 U.S. 177 (1990), however, the Supreme Court
held that a consent search is valid when police are reasonable in
thinking they have been given authorized consent. The Court cautioned,
however, that police cannot simply rely upon someone at the scene who
claims to have authority if the surrounding circumstances indicate
otherwise. If such authority is unclear, the police are obligated to ask
more questions. Determining who has power to consent is an objective
exercise, the Court stated, and the test is whether the

[page 17]

facts available to the police officer at the moment would warrant a
person of reasonable caution to believe that the consenting party had
authority over the premises. Id. at 2801.

b. Spouses

Under the Matlock "common authority" approach, most spousal consent
searches are valid. Although spouses who create exclusive areas may
preclude their partners from consenting to a search, that circumstance
will be unusual. Indeed* spouses do not establish "exclusive use" just by
being the only one who uses the area; there must be a showing that the
consenting spouse was denied access. 3 W. LaFave, supra p. 11,  8.4(a),
at 278. In United States v. Duran, 957 F.2d 499, 504-5 (7th Cir. 1992),
for example, the defendant and his wife lived on a farm with several
outbuildings. The wife consented to the search of a building which she
believed defendant used as a private gym, but the police found marijuana
plants inside. The court emphasized the presumption that the entire
marital premises are jointly held and controlled by the partners, and
said this presumption can be overcome only by showing that the consenting
spouse was actually denied access to the area in question.

With spouses, as with roommates, the Rodriguez "reasonable belief" rule
(supra p. 16) allows investigating agents to draw reasonable conclusions,
based upon the situation they encounter, about who has authority to
consent. In the absence of objective evidence to the contrary, agents
will be reasonable in presuming that spouses have authority to consent to
a search of anything on the marital property. Illinois v. Rodriguez,
supra.

c. Parents

In some recent computer crime cases the perpetrators have been relatively
young and, even if no longer legally minors, have resided with their
parents. Under the Matlock rationale, it is clear that parents may
consent to a search of common areas in the family home. Additionally,
with regard to minor children, the courts have found parents to hold
superior rights in the

[page 18]

home and "even rather extraordinary efforts by the child to establish
exclusive use may not be effective to undermine the parents' authority
over their home, including rooms occupied by the child." 3 W. LaFave,
supra p. 15,  8.4(b), at 283. Therefore, if parents consent to a search
and seizure of floppy disks or passwords locked in the minor child's
room, that consent should be upheld.

The issue becomes more complicated, however, when the sons and daughters
who reside with their parents are adults. In these situations, courts may
reach the opposite result when, as a practical matter, the adult child
has established an exclusive area in the home that the parents have
respected. Id. at 285. See discussion of United States v. Block, supra p.
15.

d. Employers

Employers may be either public (i.e., government) or private. The
distinction is important because government employers, unlike private
employers, are bound by the Fourth Amendment. In construing the reach of
the Fourth Amendment into the workplace, the Supreme Court has held that
government employers may search employee offices, without either a
warrant or the consent of the employee, when the search is administrative
in nature; that is, it is work-related (e.g., the supervisor needs to
find a case file) or involves work-related misconduct.  O'Connor v.
Ortega, 480 U.S. 709 (1987).

The Court found that government employees can have a reasonable
expectation of privacy even though the physical area is owned by the
government. Id. at 717 (specifically rejecting a contention made by the
Solicitor General that public employees can never have a reasonable
expectation of privacy in their place of work). The realities of the
workplace, however, suggest that an employee's expectation of privacy
must be reduced to the degree that fellow employees, supervisors,
subordinates, guests, and even the general public may have access to that
individual's work space. Recognizing that government agencies could not
function properly if supervisors had to establish probable cause and
obtain a warrant whenever they needed to look for a file in an employee's
office, the Supreme Court held that two kinds of searches are exempt.
Specifically, both (1) a non-investigatory, work-related intrusion and
(2) an investigatory search for evidence of suspected work-related
employee misfeasance are permissible without a warrant and should be
judged by the standard of reasonableness. Id. at 725-6.

[page 19]

Even so, the court made clear that "[n]ot everything that passes through
the confines of the business address can be considered part of the
workplace context...." Id. at 717. For example, the contents of an
employee's purse, briefcase, or closed luggage do not lose their private
character just because the employee has brought them to work. Thus, while
the circumstances may permit a supervisor to search in an employee's desk
for a work-related file, the supervisor usually will have to stop at the
employee's gym bag or briefcase. This analysis may have interesting
implications for "containers" like floppy disks, which certainly may be
either work-related or private, depending on the circumstances. It will
probably be reasonable for employers to assume that floppy disks found at
an office are part of the workplace, but there may be cases where a court
will treat a floppy disk as if it were a personal container of private
items.

Of course, there may be some government agencies where employees do
consent (either expressly or tacitly) to searches of even private parcels
because of the nature of the job. For example, employees with security
clearances who work with classified material may expect that their
purses, briefcases, and other bags may be inspected under certain
circumstances. The factual variations on this "reasonable expectation"
theme are endless, and are tied absolutely to the details of each case.

The O'Connor Court did not address the appropriate standard to be applied
when a government employee is being investigated for criminal misconduct
or breaches of other non-work-related statutory or regulatory standards.
Id. at 729. In a case involving employee drug testing, at least one court
has noted, in dicta, that "[t]he government may not take advantage of any
arguably relaxed `employer' standard for warrantless searches....when its
true purpose is to obtain evidence of criminal activity without complying
with the more stringent standards that normally protect citizens against
unreasonably intrusive evidence-gathering." National Federation of
Federal Employees v. Weinberger, 818 F.2d 935, 943 n.12 (D.C. Cir. 1987).
Therefore, it would appear that whenever law enforcement is conducting an
evidence-gathering search, even if the search is to take place at a
government office, agents must either obtain a warrant or fall within
some generally recognized exception to the warrant requirement.
Appropriate consent from a third party is, of course, one of those
exceptions.

Generally speaking, an employer (government or private) may consent to a
search of an employee's computer and peripherals if the employer has

[page 20]

common authority over them. Agents and prosecutors must consider whether,
under the facts, the employee would expect privacy in those items and
whether that expectation would be objectively reasonable. Relevant
factors include whether (1) the area/item to be searched has been set
aside for the employee's exclusive or personal use (e.g., does the
employee have the only key to the computer or do others have access to
the data); (2) the employee has been given permission to store personal
information on the system or in the area to be searched; (3) the employee
has been advised that the system may be accessed or looked at by others;
(4) there have been past inspections of the area/item and this fact is
known to the employee; and (5) there is an employment policy that
searches of the work area may be conducted at any time for any reason.
And when the employer is the federal government, another factor is (6)
whether the purpose of the search was work-related, rather than primarily
for law enforcement objectives. See generally O'Connor, 480 U.S. at 717
(employee's expectation of privacy must be assessed in the context of the
employment relationship).

There are currently no cases specifically addressing an employer's
consent to search and seize an employee's computer (and related items).
But there are cases that discuss searches of an employee's designated
work area or desk. For example, the Seventh Circuit has upheld the search
of a hotel room that served as a welfare hotel's business office after
the hotel owner consented. United States v. Bilanzich, 771 F.2d 292 (7th
Cir. 1985). The room searched was used by the defendant/manager of the
hotel for hotel business, the hotel's books were stored there, and the
room was also used by doctors and welfare officials when they visited
residents. The manager kept the key to the room. In affirming the
manager's theft and forgery convictions (based in large part on documents
seized from the business office/hotel room), the Seventh Circuit found
that the hotel owner had the requisite control over and relationship to
the business office to consent to its search. The court rejected the
manager's argument that she had sole control over the business office
because she generally had the key, finding that the owner could request
access to the room at any time, that the room was shared with others
(visiting physicians and welfare officials), and that the items sought
were business records (e.g., welfare checks that the manager had forged).
Thus, the manager did not have exclusive control over the area nor was it
for her personal use. In addition, the purpose of the search was
"employment related," since the manager was defrauding the employer and
the customers.

[page 21]

In United States v. Gargiso, 456 F.2d 584, 587 (2d Cir. 1972), the Second
Circuit upheld the search of a locked, wired-off area in the basement of
a book company -- a search to which the highest official of the book
company then on the scene (the company's vice president) had consented.
The defendant, an employee of the book company, objected to the search.
Both the defendant and the vice president had supervisory authority over
the area searched, and both also had keys to the area, as did other
company personnel. The court found that the vice president's control over
the area was equal to that of the employee's, making the consent
effective. The vice president had sufficient control over the area to
permit inspection in his own right and the employee had assumed the risk
that the vice president would do so.

In Donovan v. A.A. Beiro Construction Co.. Inc., 746 F.2d 894, 900 (D.C.
Cir. 1984), the D.C. Circuit found the D.C. Government's consent to a
search conducted by OSHA inspectors of a D.C. construction site effective
against one of the contractors. The site was a large, multi-employer area
surrounded by a chain link fence with no interior fences separating the
various contractors' work areas. There was considerable overlap and
interaction among the various contractors and their employees. The Court
found that the defendant/contractor had no reasonable expectation of
privacy in the area searched, because it was a common construction site
shared by many. Thus, the defendant/contractor had assumed the risk that
anyone with authority at the site would permit inspection of the common
construction area.

In an earlier case, United States v. Blok, 188 F.2d 1019 (D.C. Cir.
1951), the D.C. Circuit affirmed the reversal of a petty larceny
conviction of a government employee, finding that the search of the
employee's desk violated the employee's right of privacy. The court found
that the employee had exclusive use of the desk and a reasonable
expectation of privacy in it. Her employer's consent to a police search
of the desk did not make the search reasonable. There was no policy
putting employees on notice that they should not expect privacy in their
desks. Nor was the search conducted by the employer for employment
purposes (e.g., searching for a file). "It was precisely the kind of
search by policemen for evidence of a crime against which the
constitutional prohibition was directed." Id. at 1021 (quoting the
district court). Thus, the employer's consent was ineffective because the
area searched was for the employee's exclusive and personal use (factor
number 1 above); the

[page 22]

purpose of the search was not work-related (factor number 6 above); and
there was no policy putting the employee on notice that her desk might be
subject to search (factors number 3 and 5 above). Significantly, the
O'Connor Court cited Blok with approval. O'Connor, 480 U.S. at 719.

e. Networks: System Administrators

Case law demonstrates that the courts will examine the totality of the
circumstances in determining whether an employee has a reasonable
expectation of privacy or whether an employer shares authority over the
employee's space and can consent to a search. But applying this
employer-consent case law to computer searches can become especially
troublesome when the employee's computer is not a stand-alone container,
but an account on a large network server. The difficulty is a practical
one. In the physical world, individuals often intuitively understand
their rights to control physical space and to restrict access by others
because they can observe how everyone uses the space. For example, with
filing cabinets, employees can see whether they are located in private
areas, whether others have access, whether the cabinets are locked, and
who has the keys. While explicit company policies certainly help to
clarify the situation, employees can physically observe company practices
and will probably conclude from their observations that certain property
is or is not private.

By contrast, in an electronic environment, employees cannot "see" when a
network administrator, supervisor, or anyone else accesses their data.
They cannot watch the way people behave with data, as they can with a
file cabinet, and deduce from their observations the measure of privacy
they ought to expect. As a practical matter, system administrators can,
and sometimes do, look at data. But when they do, they leave no physical
clues which would tell a user they have opened one of his files. Lacking
these physical clues, some users who are unfamiliar with computer
technology may falsely but honestly believe that their data is completely
private. Will the courts hold this false belief to be one that society is
prepared to recognize as reasonable? Will the courts still find it
reasonable, even when a user knows that there are such people as system
administrators who are responsible in some fashion for operating and
securing the entire network? If so, do users who actually understand the
technology and the scope of a system operator's access to data


[page 23] have a lesser expectation of privacy and fewer Fourth Amendment
protections than users who are not so well informed? And what happens in
the years ahead as our population becomes increasingly computer literate?

 Of course, these search and seizure questions are not limited to
computer networks in the workplace. Universities, libraries, and other
organizations, both public and private, may operate computer networks on
which users store data which they consider private--either partly or
completely. If those networks provide services to the public, they will
be controlled by the provisions of 18 U.S.C.  2702, which limits the
situations in which a service provider may release the contents of
qualifying electronic mail. (For a detailed discussion of this statute,
see "STORED ELECTRONIC COMMUNICATIONS," infra p. 85.) But for material
which falls outside this statute, the Fourth Amendment analysis discussed
above will still apply.
 Prosecutors who face these issues at trial should be ready to argue that
reasonable network users do, indeed, understand the role and power of
system operators well enough to expect them to be able to protect and
even restore their files. Therefore, absent some guarantees to the
contrary, reasonable users will also expect system administrators to be
able to access all data on the system. Certainly, if the system has
published clear policies about privacy on the network or has even
explained to users that its network administrators have oversight
responsibility and control, this will support the position that a system
operator's consent to a search was valid. But if the network and its
users have not addressed these issues and the situation is ambiguous, the
safest course will be to get a warrant. (Of course, if the system
administrator does have authority to access and produce a user's files
and simply will not do it on request, agents should use a subpoena.)
 If agents choose to apply for a warrant and are concerned that a
target/user will delete his data before they can execute the search, the
agents should consider asking a cooperating system operator to make and
keep a backup of the target's data, which they can later procure under
the warrant or subpoena. The circumstances of each case will dictate the
wisest approach, but agents and prosecutors should explore all these
questions before they just ask a system administrator to produce a user's
files. [page 24]

F. INFORMANTS AND UNDERCOVER AGENTS
 As in other types of investigations, it is often helpful to use
informants or undercover agents to develop evidence. In some cases, of
course, they may be of limited value (e.g., a case involving a lone
hacker). Additionally, as a matter of policy, there may be restrictions
on the type of undercover activities in which agents may engage. For
example, the FBI does not access bulletin boards simply to view board
activities when there is no reason to believe the board is involved in
criminal activity.
 Generally speaking, however, the law allows informers to read material
on electronic bulletin boards if they have the sysop's permission,
explicit or implicit, to access the material on the board. Many BBSs, for
example, have parts of the board which are open to the public and which
require no password or identification for access. Other boards may have
isolated directories, known as sub-boards, that are open only to paying
subscribers or trusted members, and those individuals must identify
themselves with passwords. Some sysops will ask newcomers to "introduce"
themselves and will verify the new user's name, address, and other
information before granting access with a password. These introductions
should follow the same rules that undercover work has traditionally
observed. Law enforcement agents need not identify themselves as such,
but they must confine their activities to those that are authorized: they
should not break into sections of the board for which they have not been
given access. Indeed, the Ninth and Tenth Circuits have both written, in
dicta, that an undercover participant must adhere scrupulously to the
scope of a defendant's invitation to join the organization. United States
v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989), cert. denied, 498 U.S.
1046 (1991); Pleasant v. Lovell, 876 F.2d 787, 803 (10th Cir. 1989).
Thus, an informant or undercover agent must not exceed his authorized
access, and having been granted access to some "levels" of the board does
not give him permission to break into others.

[page 25]


III. SEIZING HARDWARE

 Depending on the facts of the case, the seizure of computer hardware
itself can be justified on one of three theories without regard to the
data it contains: (1) the hardware is itself contraband; (2) the hardware
was an instrumentality of the offense; or (3) the hardware constitutes
evidence of an offense. Of course, in many cases, hardware may be
seizable under more than one theory. For example, if a hacker uses his
computer to insert viruses into other systems, his computer may
constitute both an instrumentality of the offense and evidence admissible
in court.
 As noted above under Definitions, (supra p. 2), hardware is defined as
the physical components of a computer system such as the central
processing unit (CPU), keyboard, monitor, modem, and printer.

A. THE INDEPENDENT COMPONENT DOCTRINE
 We must highlight once again that computer systems are really a
combination of connected components (often by wire but increasingly by
wireless means). To say that the government has probable cause to seize a
"computer" does not necessarily mean it has probable cause to seize the
entire computer system (i.e., the computer and all connected peripheral
devices). Indeed, each component in a computer system should be
considered independently.
 In a strictly corporeal world, this doctrine is easy to understand and
apply. For example, suppose a defendant stole a television and placed it
on a television stand that he lawfully owned. Agents with a warrant for
that television would not seize the stand, recognizing that the two items
are easily separable and that there is, simply put, no justification for
taking the stand.
 With computers, the roles of the different attached components are not
always separable and it is more difficult to think in such concrete
terms. For example, agents with a warrant to seize a target's workstation
may discover that the workstation is nothing more than a dumb terminal,
and that all the evidence is in the server to which the dumb terminal is
connected by wire.

[page 26]

 Nonetheless, it is simply unacceptable to suggest that any item
connected to the target device is automatically seizable. In an era of
increased networking, this kind of approach can lead to absurd results.
In a networked environment, the computer that contains the relevant
evidence may be connected to hundreds of computers in a local-area
network (LAN) spread throughout a floor, building, or university campus.
That LAN may also be connected to a global-area network (GAN) such as the
Internet. Taken to its logical extreme, the "take it because it's
connected" theory means that in any given case, thousands of machines
around the world can be seized because the target machine shares the
Internet.
 Obviously, this is not the proper approach. The better view is to seize
only those pieces of equipment necessary for basic input/output (i.e.,
the computer itself, plus the keyboard and monitor) so that the
government can successfully execute the warrant. When agents prepare
warrants for other devices, they should list only those components for
which they can articulate an independent basis for search or seizure
(i.e., the component itself is contraband, an instrumentality, or
evidence). Certainly, the independent component doctrine does not mean
that connected devices are exempt; it only requires that agents and
prosecutors articulate a reason for taking the item they wish to seize.
For example, if the defendant has sent letters to the White House
threatening the President's life, agents should explain, as a basis for
seizing the target's printer, the need to compare its type with the
letter. Additionally, there may be other times when the government should
seize peripherals that do not contain evidence but, again, there must be
a separate basis for the seizure. See, e.g., "Seizing Hardware and
Documentation so the System Will Operate at the Lab," infra p. 62.

B. HARDWARE AS CONTRABAND OR FRUITS OF CRIME

 Federal Rule of Criminal Procedure 41(b)(2) authorizes warrants to seize
"contraband, the fruits of crime, or things otherwise criminally
possessed." The rationale behind such seizures is to prevent and deter
crime. See Warden v. Hayden, 387 U.S. 294, 306 n.11 (1967). Often the
fruits of crime and

[page 27]

objects illegally possessed will also constitute evidence of a crime, so
that they also can be seized to help apprehend and convict criminals (see
infra p. 30).

 2. Contraband and Fruits of Crime Defined The fruits of crime include
property obtained by criminal activity, United States v. Santarsiero, 566
F. Supp. 536 (S.D.N.Y. 1983) (cash and jewelry obtained by use of a
counterfeit credit card), and contraband is property which the private
citizen is not permitted to possess, Warden v. Hayden, supra; Aguilar v.
Texas, 378 U.S. 108 (1964) (narcotics). Even plans to commit a crime may
constitute contraband. Yancey v. Jenkins, 638 F. Supp. 340 (N.D. Ill.
1986).
 Of course, many objects which are fruits of crime or illegally possessed
are innocent in themselves and can be possessed by at least certain
persons under certain conditions. See, e.g. United States v. Truitt, 521
F.2d 1174, 1177 (6th Cir. 1975) (noting that a person legally can possess
a sawed-off shotgun if it is properly registered to its owner, though its
lawful possession is rare). A court reviewing a seizure under Rule
41(b)(2) will examine whether the circumstances would have led a
reasonably cautious agent to believe that the object was a fruit of crime
or was illegally possessed. For example, the seizure of jewelry as a
fruit of crime in Santarsiero was upheld because a reliable informant had
told officers that the suspect had boasted of using counterfeit credit
cards to purchase jewelry. 566 F. Supp. at 544-45.
 Certainly, there are instances where computer hardware and software are
contraband or a fruit of crime. For example, there have been several
recent cases involving the theft of computer equipment. Additionally,
hackers have been known to penetrate credit reporting companies,
illegally obtain credit card numbers, and then order computer equipment
with these illegal access devices. In such cases, the equipment that they
receive is a product of the fraud and should be seized as such.

[page 28]

C. HARDWARE AS AN INSTRUMENTALITY OF THE OFFENSE

 1. Authority for Seizing Instrumentalities
 Federal Rule of Criminal Procedure 41(b)(3) authorizes warrants to seize
the instrumentalities of crime; that is, "property designed or intended
for use or which is or has been used as the means of committing a
criminal offense." The historical justification for the government's
ability to seize instrumentalities of crime is the prevention of their
use to commit future crimes. See Warden v. Hayden, 387 U.S. 294, 306 n.11
(1967); United States v. Boyette, 299 F.2d 92, 98 (4th Cir.) (Sobeloff,
C.J., dissenting), cert. denied, 369 U.S. 844 (1962).

 2. Instrumentalities Defined
 An instrumentality of an offense is any machinery, weapon, instrument,
or other tangible object that has played a significant role in a crime.
See, e.g., United States v. Viera, 569 F. Supp. 1419, 1428 (S.D.N.Y.
1983) (sophisticated scale used in narcotics trafficking and black light
used in counterfeiting currency). Where the object itself is innocent in
character, courts will assess its role in the crime to determine whether
it was an instrumentality. Compare United States v. Markis, 352 F.2d 860,
864-65 (2d Cir. 1965) (telephone used to take bets by operators of
illegal wagering business was an instrumentality because it was integral
to the criminal enterprise), vacated without opinion, 387 U.S. 425
(1967), with United States v. Stern, 225 F. Supp. 187, 192 (S.D.N.Y.
1964) (Rolodex file was not instrumentality where it contained names of
individuals involved in tax fraud scheme). As stated by the Southern
District of New York:

Not every article that plays some part in the commission of the alleged
crime is a means of committing it. ....  Although it is not necessary
that the crime alleged could not have been committed but for the use of
the article seized, after a consideration of all the circumstances it
must appear that the article played a significant role in the commission
of the crime alleged.

[page 29]

Stern, 225 F. Supp. at 192 (emphasis in original).
 Before the Supreme Court's decision in Warden v. Hayden, 387 U.S. 294
(1967), courts held that seizable property included instrumentalities,
but did not include mere evidence. See generally 3 Wright & Miller,
Federal Practice and Procedure: Criminal 2d  664 (1982). In practice,
however, judges were reluctant to suppress useful pieces of evidence at
trial, preferring instead to interpret the term "instrumentality" broadly
enough to encompass items of evidentiary value. For example, the district
court in United States v. Robinson, 287 F. Supp. 245 (N.D. Ind. 1968),
upheld the seizure of the following items, all of which connected the
defendant to the murder of a federal narcotics agent, as
"instrumentalities" of the crime and not "mere evidence": a pair of
shoes, a shirt, a jacket, handkerchiefs, spent shell casings, and wet
washcloths. Such legal gymnastics were abandoned when the Supreme Court
held, in Hayden, that the Fourth Amendment principally protected privacy
rights, not property rights, and secured "the same protection of privacy
whether the search is for 'mere evidence' or for fruits,
instrumentalities or contraband." Hayden, 387 U.S. at 306-07.
 Although items that are evidence of crime may now be seized along with
instrumentalities, fruits, and contraband, this historical perspective is
important for understanding why some early decisions may have categorized
evidentiary items as instrumentalities. Moreover, the distinction between
"an instrumentality" and "mere evidence" remains critical in computer
crime cases because it may determine the government's ability to seize
hardware. If a computer and all its peripherals are instrumentalities of
a crime, the warrant should authorize the seizure of these items. But if
we are seeking the computer only for the documents (mere evidence) it
contains, it may be more difficult to justify the seizure or retention of
hardware.

 Applying the independent component doctrine to the rule permitting
seizure of instrumentalities will, in most cases, not be difficult. For
example, if an individual engaging in wire fraud printed out thousands of
phony invoices on his home computer, it would be reasonable to take the
computer, monitor, keyboard, and printer. If the individual
electronically mailed these invoices to his victims, it would also be
appropriate to seize his external modem (if the modem were internal it
would, of course, be seized when the agents took the computer itself).
If, instead of using electronic mail, he used a conventional fax machine,
it would be reasonable to seize the fax as it, too would have played a
significant role in the commission of the offense.

[page 30]

D. HARDWARE AS EVIDENCE OF AN OFFENSE
 1. Authority for Seizing Evidence
 In 1972, Federal Rule of Criminal Procedure 41(b) was amended to
authorize seizing "mere evidence" of a crime. In relevant part, the Rule
now states: "A warrant may be issued under this rule to search for and
seize any (1) property that constitutes evidence of the commission of a
criminal offense...."

 2. Evidence Defined
 A physical item is evidence if it will aid in apprehending or convicting
a person who has committed a crime. The evidence seized need not be
admissible at trial.
 Courts will evaluate a seizure under this test according to what a
reasonable person would believe under the circumstances, and law
enforcement officers will not be judged after-the-fact on how helpful the
seized evidence actually was in apprehending or convicting a suspect. See
Andresen v. Maryland, 427 U.S. 463, 483 (1976) (holding that the "trained
special investigator reasonably could have believed" the seized evidence
could be used to show criminal intent); United States v. Truitt, 521 F.2d
1174, 1176-78 (6th Cir. 1975) (holding that a reasonably cautious police
officer could have believed under the circumstances that a sawed-off
shotgun, although legal if registered, was incriminating evidence).
 Of course, simply because an item is "evidence of a crime" does not mean
that other restrictions may not apply. Law enforcement officials should
be aware of other limits imposed by the Constitution, statutes, and
regulations upon the seizure of evidence. See, e.g., Guidelines on
Methods of Obtaining Documentary Materials Held by Third Parties, 28
C.F.R. 59.1-.6 (governing the application for search warrants for
documentary evidence held by non-suspect third parties).

[page 31]

Although computers commonly contain evidence, sometimes they are
evidence. If an extortionist sent a letter to his victim with unique
print characteristics (e.g., the top half of the letter "W" was missing),
his daisy~wheel printer would constitute evidence which could be seized.

E. TRANSPORTING HARDWARE FROM THE SCENE

Whether a computer is seized as contraband, an instrumentality, or
evidence, it is important to transport it properly. With some simple
computers, moving the equipment is a straightforward proposition. But
computer systems are becoming so increasingly complex and diverse that it
is harder than ever for technically untrained agents to avoid mistakes.
These Guidelines cannot possibly substitute for the expertise that comes
from special training courses in seizing, searching, and preserving
electronic evidence. Indeed, the discussion that follows is meant only as
introduction and orientation to these issues, and not as a comprehensive
guide to all the technical contingencies which may arise during a search.
The team for a computer-related search should, if possible, include at
least one technically trained agent to act as a leader in these areas.
Clearly, as complex computer systems become increasingly common, law
enforcement agencies will need more trained agents at almost every crime
scene. In the meantime, the following discussion may help prosecutors and
investigators to anticipate the problems which can confront them.

First, agents must protect the equipment from damage. Second, to the
extent they are transporting information storage devices (e.g., hard
drives, floppy disks), improper handling can cause loss of data. Third,
it may be impossible to make the system work in the field office,
laboratory, or courtroom if the seizing agents did not carefully pack and
move the computer system so that it can be successfully reassembled
later.

Before the search begins, the search leader should prepare a detailed
plan for documenting and preserving electronic evidence, and should take
time to carefully brief the entire search team to protect both the
identity and integrity of all the data. At the scene, agents must
remember to collect traditional types of evidence (e.g., latent
fingerprints off the keyboard) before touching anything. They must
remember, too, that computer data can be destroyed by strong magnetic
fields. (Low density magnetic media is more susceptible to such

[page 32]

interference than high density media.) Last, some computer experts will
not examine evidence if anyone else has already tried to search or
manipulate the data. Their chain-of-custody and integrity-of-evidence
procedures will not allow them to examine the computer if its original
crime-scene seal has been broken.

The agents executing the actual search must take special precautions when
disassembling and packing computer equipment. This careful approach
protects not only the hardware items, but also the integrity and
accessibility of the data inside. Before disconnecting any cables, it is
helpful to videotape or photograph the site (including the screen, if
possible, and all wiring connections) and prepare a wiring schematic.
This will document the condition of the equipment upon the agents'
arrival and show how the system was configured. Agents should disconnect
all remote access to the system (e.g., unplug the telephone cord, not the
power cord, from the modem) and disconnect network cables from the
servers so that no one can alter or erase information during the search.
Investigators need to accurately label each cable and the device and port
to which the cable connects before disconnecting anything. It is a good
idea to attach tags at every connection point on every cable to record
all relevant information. It is especially important to label every
vacant port as "vacant" so that there is no confusion later. (If vacant
ports are not labeled, it is impossible for an expert to tell whether the
unlabeled port was in fact vacant, or whether an important label simply
fell off.) Once this is done, agents are ready to disassemble, tag and
inventory the equipment.

Investigators must determine which drives, disks, and other magnetic
media need to be protected. If a hard disk drive is being moved, they
must insure that the read/write heads are secured to prevent damage. Some
systems secure (park) the heads automatically whenever the machine is not
in use, but other systems may require that a specific command be executed
or that the heads be secured mechanically. The manufacturer's operating
manual should specify the proper procedure for each system.

Agents should protect floppy disk drives according to manufacturer's
recommendations. Some suggest inserting a new diskette or piece of
cardboard in the drive slot; others do not. (As with hard drives, each
manufacturer's instructions may be found in the system manual).
Investigators must also label diskettes (either individually or in
groups), mark them as evidence and place them in non-plastic evidence
containers.

[page 33]

Agents must be conscious of static electricity buildup during the
execution of the warrant since static electricity can "zap" a disk and
damage data. So can degaussing equipment (an electronic appliance that
creates a strong magnetic field and can be used to effectively erase a
magnetic tape or disk). A well-known story in law enforcement circles
involves a hacker who allegedly magnetized his metal door frame, thus
creating a magnetic field that erased magnetic media as agents carried it
through the doorway. This story has not been verified and, even if true,
such an event is unlikely to occur now because high density media is not
easily disrupted by magnetic fields. Nonetheless, a device to measure
magnetic fields (a compass or, even better, a gaussmeter) can determine
whether such fields exist and, as a general rule, agents should avoid
placing magnetic media near any strong magnetic field. Magnetic fields
may be created by telephones, radio transmitters, and photocopiers.
Additionally, although magnetic media has often been taken through
airport metal detectors and X-ray machines without damage, it is wiser
not to take magnetic media through these devices. (It is the motor
driving the conveyor belt on the X-ray machine, not the fluoroscope
itself, that creates the magnetic field which causes the damage.)

Transporting agents should keep all hardware and software in dust-free,
climate-controlled environments. Computer-related evidence is sensitive
to heat and humidity and should not be stored in the back seat or trunk
of a car without special precautions. Temperature extremes may render
magnetically stored evidence unreadable, and various types of
contamination can damage electronic equipment. A safe range for storing
magnetic media is between 40-90F and 20%-80% humidity, free of dust and
tobacco smoke.

[no page 34] [page 35]


IV. SEARCHING FOR AND SEIZING INFORMATION

A. INTRODUCTION

Hardware searches are not conceptually difficult. Like searching for
weapons, the items sought are tangible. They occupy physical space and
can be moved in familiar ways. Searches for data and software are far
more complex. For purposes of clarity, these types of searches must be
examined in two distinct groups: (1) searches where the information
sought is on the computer at the search scene and (2) searches where the
information sought has been stored off-site, and the computer at the
search scene is used to access this off-site location.3

In some cases, the distinction is insignificant, and many topics covered
in this section apply equally to both types of searches. On the other
hand, there are certain unique issues that arise only when the computer
is part of a network. For example, since Fed. R. Crim. P. 41(a) requires
that a search warrant be issued by a court in the district where the
property is located, agents may have to get a second warrant in another
district if the target has sent data to a distant computer. See
"Describing the Place to be Searched," infra p. 92.

Although "property" is defined in Federal Rule of Criminal Procedure
41(h) to include "documents, books, papers and other tangible objects,"
(emphasis added), courts have held that intangible property such as
information may be seized. In United States v. Villegas, 899 F.2d 1324,
1334-35 (2d Cir.), cert. denied, 498 U.S. 991 (1990), the Second Circuit
noted that warrants had been upheld for intangible property such as
telephone numbers called from a given phone line and recorded by a pen
register, conversations overheard by means of a microphone touching a
heating duct, the movement of property as tracked by location-monitoring
beepers, and images seized with video cameras and telescopes. The court
in Villegas upheld a warrant which authorized agents to search a cocaine
factory and covertly take photographs without authorizing the seizure of
any tangible objects. But see United States

 ------------------------- 

3 Any home PC can be connected to a network simply by adding a modem.
Thus, in any ease where a modem is present, agents should consider the
possibility that the computer user has stored valuable information at
some remote location.

[page 36]

v. Johns, 948 F.2d 599 (9th Cir. 1991), cert. denied, 112 S. Ct. 3046
(1992) (a "sneak and peek" warrant executed without giving notice to the
defendants that the search had occurred violated Rule 41(d)).

B. INFORMATION AS CONTRABAND

The same theories which justify seizing hardware--contraband or fruit of
crime, instrumentality, or evidence--also apply to seizing information.
See "Authority for Seizing Contraband or Fruits of Crime," supra p. 26.
Because individuals often obtain copies of software in violation of
copyright laws, it may be appropriate to seize that software as well as
any documentation (such as photocopied software manuals) because they
 are likely to be illegally obtained. (Software producers may allow a
purchaser to make a backup copy of the software bought, but these copies
may not be disseminated because of copyright laws.) Lists of telephone
card access codes and passwords for government computer networks may also
be considered contraband, because their possession is prohibited by
statute if the possessor has the requisite mens rea. 18 U.S.C.
1029(a)(3), 18 U.S.C.  1030(a)(6).

C. INFORMATION AS AN INSTRUMENTALITY

Rule 41(b) broadly defines what may be seized as an instrumentality: any
"property designed or intended for use or which is or has been used as
the means of committing a criminal offense." Fed. R. Crim. P. 41(b)(3).
This includes both tangible and intangible property.  See United States
v. Villegas, supra, p. 35. Thus, in some cases, informational documents
and financial instruments which have been used in the commission of an
offense may be seized as instrumentalities of crime. Compare Abel v.
United States, 362 U.S. 217, 237-9 (1960) (documents used in connection
with suspect's illegal alien status were instrumentalities, including
phony birth certificates, bank records,

[page 37]

and vaccination records) with Application of Commercial Inv. Co., 305 F.
Supp. 967 (S.D.N.Y. 1969) ($5 million in securities were not
instrumentalities where the government suspected improprieties with an
$18,000 brokerage account and the securities were at most "incidental" to
the offense).

Likewise, investigators should seize objects if they are "designed or
intended for use" as instrumentalities. Fed. R. Crim. P. 41(b)(3).
Sometimes an item will obviously fit that description (like software
designed to help hackers crack passwords or lists of stolen credit card
numbers) but, at other times, it may not be so simple. Even so, as long
as a reasonable person in the agent's position would believe the item to
be an instrumentality, the courts will probably respect the agent's
judgment. This is, after all, the same test used to determine when an
object would aid apprehension or conviction of a criminal. See Andresen
v. Maryland, 427 U.S. 463, 483 (1976). As such, the particular facts of
the case are very important. For example, if an agent investigating the
sysop of an illegal bulletin board knows that the board only operates on
one personal computer, a second computer sitting in the same room is
probably not an instrumentality. But if the agent has heard from a
reliable informant that the suspect has boasted about expanding his
operation to a second board, that second computer is probably "intended"
as an instrumentality, and the agent should take it. Additionally, if the
suspect has substantially modified a personal computer to enhance its
usefulness for a particular crime (perhaps by installing
password-cracking software), an agent might well reasonably believe that
the computer and the software was "designed" for criminal activity.

D. INFORMATION AS EVIDENCE

Before the Supreme Court's rejection of the "mere evidence" rule in
Warden v. Hayden, 387 U.S. 294, 300-301 (1967), courts were inconsistent
in ruling whether records that helped to connect the criminal to the
offense were instrumentalities of crime (and thus seizable), or were
instead merely evidence of crime (and thus not seizable). Compare Marron
v. United States, 275 U.S. 192 (1927) (approving prohibition agent's
seizure of bills and ledger books belonging to speakeasy operators as
instrumentalities of crime) with United States v. Lefkowitz, 285 U.S. 452
(1932)(disapproving prohibition agent's seizure of papers intended to
solicit orders for illegal liquor). Indeed, several courts have concluded
that, when it comes to documents, it is impossible to

[page 38]

separate the two categories. See Hayden, 387 U.S. at 302 (stating that
the distinction between mere evidence and instrumentalities "is wholly
irrational, since, depending on the circumstances, the same `papers and
effects' may be `mere evidence' in one case and `instrumentality' in
another"); United States v. Stern, 225 F. Supp. 187, 191 (S.D.N.Y. 1964)
("It would be hazardous to attempt any definition [of papers that are
instrumentalities of crime and not mere evidence]; we shall not."). Now
that evidence of crime may be seized in the same way as instrumentalities
of crime, it is useful to acknowledge that, in most instances, documents
and other information connecting the criminal to his offense should be
viewed as evidence of the crime, and not as instrumentalities. For
example, in United States v. Lindenfield, 142 F.2d 829, 830-32 (2d Cir.),
cert. denied, 323 U.S. 761 (1944), the prescription records of a doctor
who illegally prescribed morphine to "patients" were classified as
evidence, not as instrumentalities.

The prescription records in Lindenfield illustrate the sort of document
that may be seized as evidence: records that reveal the operation of the
criminal enterprise over time. Other examples include the customer lists
of narcotics traffickers, telephone bills of hackers who break into
computer networks, and plans for the fraud or embezzlement of corporate
and financial targets. This documentary evidence may be in paper or book
form, or it may be stored electronically in a computer or on a backup
tape. As with other types of evidence, documents may be seized if they
aid in showing intent and the absence of mistake on the suspect's part,
even though they may not relate directly to the commission of the crime,
but to some other similar transaction instead. See Andresen v. Maryland,
427 U.S. 463, at 483-84 (1976)(approving seizure of documents about a
second transaction because they showed criminal intent and absence of
mistake in the first transaction).

1. Evidence of Identity

Evidence of a crime also includes various types of identification
evidence. For example, courts have recognized that clothing seen worn by
a criminal during the commission of the offense constitutes evidence of
the crime,

[page 39]

because it helps to tie the suspect to the crime.  See, e.g., United
States v. Korman, 614 F.2d 541, 547 (6th Cir.)(approving the seizure of a
green ski jacket as both evidence of and an instrumentality of the
crime), cert. denied, 446 U.S. 952 (1980).

Documents that incriminate a suspect's co-conspirators also may be seized
as evidence because they help identify other involved parties and connect
them with the suspect. See, e.g., United States v. Santarsiero, 566 F.
Supp. 536, 544 (S.D.N.Y. 1983) (approving the seizure of the suspect's
notebook in a counterfeit credit card investigation where others were
working with or purchasing cards from him, and the notebook contained
telephone numbers that the investigating officers could reasonably
believe would help in identifying and connecting others with the
suspect's crimes). In many computer crimes, we have found that hackers
work jointly and pool hacking information. In these cases, telephone
records may prove this connection. Moreover, agents may seize evidence
that helps identify the occupant of a home or office connected to the
crime, where the home or office is used regularly by more than one
person. See, e.g., United States v. Whitten, 706 F.2d 1000, 1008-09 (9th
Cir. 1983)(approving the seizure of telephone books, diaries, photos,
utility bills, telephone bills, personal property, cancelled mail, keys,
rent receipts, deeds, and leases that helped establish who owned and
occupied premises used for a large scale narcotics operation, where the
premises were used by more than one person and the warrant authorized
seizing items "indicating the ownership or occupancy of the residence"),
cert. denied, 465 U.S. 1100 (1984). As with houses and offices, computers
are often used by more than one person, and this sort of evidence may
help establish just who used the computer or computers to commit the
crime.

2. Specific Types of Evidence

a. Hard Copy Printouts

Any information contained in a computer system may have been printed out
by the target of the investigation. Finding a printed copy may be
valuable for a number of reasons. First, a printout may display an
earlier version of

[page 40]

data that has since-been altered or deleted. Second, in certain
electronic environments (such as bulletin boards), individuals may claim
to lack knowledge about what information is electronically stored in the
computer (e.g., a bulletin board operator may disavow any knowledge that
his board contained illegal access codes that were posted and downloaded
by others). Finding printed copies in someone's possession may negate
this defense. Third, the printouts may tie the crime to a particular
printer which, in turn, may be seizable as an instrumentality (e.g., the
printouts may reveal that extortionate notes were printed on a certain
printer, thus warranting seizure of the printer).

b. Handwritten Notes

Finally, agents should be alert for notes in manuals, on the equipment,
or in the area of the computer. These may provide critical keys to
breaking passwords, finding the file or directory names of important
data, operating the hardware or software, identifying the suspect's
electronic or telephone connections with co-conspirators and victims, or
finding login names or accounts.

E. PRIVILEGED AND CONFIDENTIAL INFORMATION

1. In General

Warrants to search computers which contain privileged information must
meet the same requirements as warrants to search for and seize paper
documents under similar conditions; that is, the warrant should be
narrowly drawn to include only the data pertinent to the investigation,
and that data should be described as specifically as possible. See, e.g.
Klitzman v. Krut, 744 F.2d 955 (3d Cir. 1984). Since a broad search of
computers used by confidential fiduciaries (e.g., attorneys or
physicians) is likely to uncover personal information about individuals
who are unconnected with the

[page 41]

investigation, it is important to instruct any assisting forensic
computer experts not to examine files about uninvolved third parties any
more than absolutely necessary to locate and seize the information
described in the warrant.

a. Doctors, Lawyers, and Clergy

Federal law recognizes some, but not all, of the common law testimonial
privileges. Fed. R. Evid. 501. Indeed, Congress has recognized a "special
concern for privacy interests in cases in which a search or seizure for
.... documents would intrude upon a known confidential relationship such
as that which may exist between clergyman and parishioner; lawyer and
client; or doctor and patient." 42 U.S.C.  2000aa-11(1)(3). At Congress's
direction, see 42 U.S.C.   2000aa-11(a), the Attorney General has issued
guidelines for federal officers who want to obtain documentary materials
from disinterested third parties. 42 U.S.C.  2000aa-11. Under these
rules, they should not use a search warrant to obtain documentary
materials believed to be in the private possession of a disinterested
third party physician, lawyer, or clergyman where the material sought or
likely to be reviewed during the execution of the warrant contains
confidential information on patients, clients, or parishioners. 28 C.F.R.
59.4(b). A search warrant can be used, however, if using less intrusive
means would substantially jeopardize the availability or usefulness of
the materials sought; access to the documentary materials appears to be
of substantial importance to the investigation; and the application for
the warrant has been recommended by the U.S. Attorney and approved by the
appropriate Deputy Assistant Attorney General. 28 C.F.R.  59.4(b)(1) and
(2).

b. Publishers and Authors

Additionally, Congress has expressed a special concern for publishers and
journalists in the Privacy Protection Act, 42 U.S.C. 2000aa. Generally
speaking, agents may not search for or seize any "work product materials"
(defined by statute) from someone "reasonably believed to have a purpose
to disseminate to the public a newspaper, book, broadcast, or other
similar form of public communication."  42 U.S.C.  2000aa(a). In
addition, as an even

[page 42]

broader proposition, government officers cannot search for or seize
"documentary materials" (also defined) from someone who possesses them in
connection with a purpose to similarly publish. 42 U.S.C.  2000aa(b).
These protections do not apply to contraband, fruits of a crime, or
things otherwise criminally possessed. 42 U.S.C.  2000aa-7.

Although this provision may seem, at first blush, to have a somewhat
limited application for law enforcement, it has emerged as a frequent
issue in computer searches. Because even a stand-alone computer can hold
thousands of pages of information, it is common for users to mix data so
that evidence of crime is commingled with material which is innocuous--or
even statutorily protected. And as a technical matter, analysts sometimes
cannot recover the electronic evidence without, in some manner, briefly
searching or seizing the protected data. Moreover, this problem becomes
exponentially more difficult, both legally and practically, if the target
computers are part of a network which holds the work of many different
people. The larger the network and the more varied its services, the
harder it is to predict whether there might be information on the system
which could arguably qualify for statutory protection. (This complex area
of the law is discussed in detail at "THE PRIVACY PROTECTION ACT, 42
U.S.C.  2000aa," infra p. 72. It is critical that prosecutors and agents
read this section and the statute with care before undertaking a search
which may intrude on protected materials.)

2. Targets

If the person who holds the documents sought is not "disinterested" but a
target of the investigation, the rules are understandably different. In
those cases, agents may get a warrant to search the files for
confidential information (regardless of whether that information is
technically "privileged" under Federal law), but the warrant should be
drawn as narrowly as possible to include only information specifically
about the case under investigation.

When the target of an investigation has complete control of the computer
to be searched (such as a stand-alone PC), it may be difficult to find
all the evidence without examining the entire disk drive or storage
diskettes. Even in situations like these, it may be possible to get other
people in the suspect's office to help locate the pertinent files without
examining everything. When a

[page 43]

computer must be removed from the target's premises to examine it, agents
must take care that other investigators avoid reading confidential files
unrelated to the case. Before examining everything on the computer,
analysts should try to use other methods to locate only the material
described in the warrant. Finally, as experts comb for hidden or erased
files or information contained between disk sectors, they must continue
to protect the unrelated, confidential information as much as possible.

3. Using Special Masters

In rare instances, the court may appoint a special master to help search
a computer which contains privileged information. See, e.g., DeMassa v.
Nunez, 747 F.2d 1283 (9th Cir. 1984). A neutral master would be
responsible to the court, and could examine all the documents and
determine what is privileged. If the court appoints a master, the
government should ask for a neutral computer expert to help the master
recover all the data without destroying or altering anything. In cases
like these, the computer expert needs detailed instructions on the search
procedures to be performed. In no event should the target of the search
or his employees serve as the master's computer expert.

F. UNDERSTANDING WHERE THE EVIDENCE MIGHT BE: STAND- ALONE PCs, NETWORKS
AND FILE-SERVERS, BACKUPS, ELECTRONIC BULLETIN BOARDS, AND ELECTRONIC
MAIL

1. Stand-Alone PCs

When searching for information, agents must not overlook any storage
devices. This includes hard drives, floppy disks, backup tapes, CD-ROMs4,

[page 44]

WORM drives 5, and anything else that could hold data. In addition,
notwithstanding the high-tech nature of computer searches, investigators
must remember basic evidentiary techniques. If identification is an
issue, they should look for fingerprints or other handwritten notes and
labels that may help prove identity. If data is encrypted, a written copy
of the password is clearly important.

--------------------------

4 CD-ROM stands for Compact Disk--Read Only Memory. Much like a compact
disk for music, it allows the user to search for and read information
without being able to alter it.

5 WORM stands for Write Once Read Many. The user can write large amounts
of information to a platter (a large disk); but once written, the platter
can only be read, not altered.

a. Input/Output Devices: Do Monitors, Modems, Printers, and Keyboards
Ever Need to be Searched?

Prosecutors must always keep in mind the independent component doctrine (
supra p. 25); that is, there must be a basis for seizing each particular
item. If agents are only searching for information, it may be senseless
to seize hardware that cannot store information.

That said, it is important to remember that information can be retrieved
from many hardware devices, even those not normally associated with a
storage function. Generally speaking, input and output (I/O) devices such
as keyboards, monitors, and printers do not permanently store data. Most
data is stored on devices such as hard drives, CD-ROMs, and floppy disks.
By contrast, I/O devices are used to send data to, and receive data from,
the computer. Once the computer is turned off, I/O devices do not store
information. For example, when a computer is turned off, the information
on the screen is lost unless it has been saved to a storage device.

However, there are significant exceptions to this general rule. A trained
computer specialist, using specialized techniques, may find data or other
evidence even on I/O devices. The following list is not all-inclusive,
but rather offers some examples of I/O devices that may provide useful
evidence even after they have been turned off.

(1) Laser printers -- It may be possible to search for images of the last
page printed on laser printers. This technique requires planning because
the expert must examine the printer before it is moved. If this type of
evidence may be needed, a computer expert must be ready at the

[page 45]

scene with the necessary equipment. Additionally, paper containing
information may still be inside a laser printer due to a paper jam that
was not cleared.

(2) Hard disk print buffers -- Some laser printers have five- or
ten-megabyte hard drives that store an image before it prints, and the
information will stay on the drive until the printer runs out of memory
space and writes over it. One example of a printer that may have an
internal hard drive is the Qume 1000 Color Printer. An expert would be
able to search the hard drive for information sent to and stored by that
printer.

(3) Print Spooler Device -- This device holds information to be printed.
The spooler may be holding a print job if the printer was not ready to
print when the print command was given (e.g., the printer was not turned
on or was out of paper). This device should be handled at the scene since
the information will be lost when power is disrupted.

(4) Ribbon printers -- Like old typewriter ribbons, printer ribbons
contain impressions from printed jobs. These impressions can be recovered
by examining the ribbon.

(5) Monitors -- Any burning of the screen phosphorus may reveal data or
graphics commonly left on the screen.

(6) Keyboards -- Although they do not normally store information, some
unusual keyboards are actually computer workstations and may contain an
internal diskette drive.

(7) Hard Cards -- These appear to be a typical function board but they
function like a hard disk drive and store information.

(8) Scanner -- Flatbed type scanners may have hard paper copy underneath
the cover.

(9) Fax machines -- Although some kinds of stand-alone fax machines
simply scan and send data without storing it, other models can store the
data (e.g., on a hard drive) before sending it. Significantly, the data
remains in the machine's memory until overwritten. Some fax machines
contain two or more megabytes of memory--enough to hold hundreds of pages
of information.

[page 46] b. Routine Data Backups

Even on stand-alone systems, computer users often make backup copies of
files to protect against hardware failure or other physical disruptions.
If the computer has any sort of failure which destroys the original copy
of data or programs (e.g., a hard disk failure), the data can then be
restored from the backups. How often backups are made is solely up to the
user. As a practical matter, however, most computer-literate users will
back up data regularly since mechanical failures are not uncommon and it
is often difficult and time~-consuming to recreate data that has been
irretrievably lost. Backup copies can be made on magnetic tape, disks, or
cartridges.

2. Networked  PCs

Increasingly, computers are linked with other computers. This can be done
with coaxial cable in a local area network, via common telephone lines,
or even through a wireless network, using radio frequency (RF)
communications. Due to this interconnectivity, it has become more
important than ever to ascertain from sources or surveillance what type
of system agents will encounter. Without knowing generally what is there
before the search, investigators could end up with nothing more than a
"dumb terminal" (no storage capability) connected to a system which
stores the files in the next county or state. It would be akin to
executing a search warrant for a book~making operation on a vacant room
that only has a phone which forwards calls to the actual operation site.
During the planning stage of a search, the government must consider the
possibility of off-site storage locations.

The following are systems or devices which make it possible for a suspect
to store data miles, or even continents, away from her own computer:

FILE SERVER: A file server is a computer on a network that stores the
programs and data files shared by the users of the network. A file server
acts like a remote disk drive, enabling someone to store information on a
computer system other than his own. It can be located in another judicial
district from the target machine. [page 47]

ELECTRONIC MAIL: Electronic mail provides for the transmission of
messages and files between computers over a communications network.
Sending information in this way is similar in some ways to mailing a
letter through the postal service. The messages are sent from one
computer through a network to the electronic address of another specific
computer or to a series of computers of the sender's choice. The
transmitted messages (and attached files) are either stored at the
computer of the addressee (such as someone's personal computer) or at a
mail server (a machine dedicated, at least in part, to storing mail). If
the undelivered mail is stored on a server, it will remain there until
the addressee retrieves it. When people  "pick up" e-mail from the mail
server, they usually receive only a copy of their mail, and the stored
message is maintained in the mail server until the addressee deletes it
(some systems allow senders to delete mail on the server before
delivery). Of course, deleted mail may sometimes be recovered by
undeleting the message (if not yet overwritten) or by obtaining a backup
copy (if the server was backed up before the message was deleted).

ELECTRONIC BULLETIN BOARD SYSTEMS (BBS): A bulletin board system is a
computer dedicated, in whole or in part, to serving as an electronic
meeting place. A BBS computer system may contain information, programs,
and e-mail, and is set up so that users can dial the bulletin board
system, read and leave messages for other users, and download and upload
software programs for common use. Some BBSs also have gateways which
allow users to connect to other bulletin boards or networks. A BBS can
have multiple telephone lines (so that many people can use it at the same
time) or a single line where a user's access is first-come, first-served.
BBSs can have several levels of access, sometimes called "sub-boards"  or
"conferences."  Access to the different conferences is usually controlled
by the system operator with a password system. A single user may have
several different passwords, one for each different level or conference.
A user may store documents, data, programs, messages, and even
photographs in the different levels of the BBS.

A bulletin board system may be located anywhere telephone lines go.
Therefore, if a suspect may have stored important information on a BBS, a
pen register on the suspect's phone may reveal the location of these
stored files. Agents must be careful, though, because sysops have been
known to forward incoming calls through a simple phone in one spot to

[page 48]

their BBS computers somewhere else. Sometimes these calls hop between
houses, and sometimes, between jurisdictions. Investigators cannot assume
that the phone number called by the suspect is always the end of the
line.

VOICE-MAIL SYSTEMS: A voice-mail system is a complex phone answering
machine (computer) which allows individuals to send and receive telephone
voice messages to a specific "mailbox" number. A person can call the
voice-mail system (often a 1-800 number) and leave a message in a
particular person's mailbox, retrieve messages left by other people, or
transfer one message to many different mailboxes in a list. Usually,
anyone can leave messages, but it takes a password to pick them up or
change the initial greeting. The system turns the user's voice into
digital data and stores it until the addressee erases it or another
message overwrites it. Criminals sometimes use voice mailboxes
(especially mailboxes of unsuspecting people, if the criminals can beat
the mailbox password) as remote deaddrops for information which may be
valuable in a criminal case. Voice mailboxes are located in the message
system computer of the commercial vendor which supplies the voice-mail
service, or they can be found on the computer at the location called.
Voice mail messages can be written on magnetic disk or remain in the
computer's memory, depending on the vendor's system.

Of course, all networked systems, whether data or voice, may keep routine
and disaster backups.

a. Routine Backups

Making backups is a routine, mandatory discipline on multi-user systems.
On larger systems, backups may be created as often as two to three times
per working shift. Usually backups are made once per day on larger
systems and once per week on smaller ones. Backups are usually stored in
a controlled environment to protect the integrity of the data (e.g.,
locked in a file cabinet or safe). The system administrators will usually
have written procedures which set out how often backup copies will be
made and where they will be kept. Backups for large systems are often
stored at remote locations.

[page 49]

b. Disaster Backups

These are additional backups of important data meant to survive all
contingencies, such as fire, flood, etc. As extra protection, the data is
stored off-site usually in another building belonging to the business or
in rented storage space. It would be unusual to find the disaster backups
near the routine backups or original data. Again, these copies can be
stored on diskettes, magnetic tape, or cartridge.

G . SEARCHING FOR INFORMATION

1. Business Records and Other Documents

Obtaining records from a multi-user computer system raises certain issues
that are uncommon in the paper world. When dealing with papers stored in
filing cabinets, agents can secure the scene and protect the integrity of
the evidence by physically restricting access to the storage container
and its papers. Electronic records are, of course, easier to alter or
destroy. More important, such alteration or destruction may occur while
the agent is looking at a copy of the document on A workstation terminal.
Therefore, it is important to control remote access to data while the
search is being conducted. This can often be done by prohibiting access
to the file or file server in question, either by software commands or by
physically disconnecting cables. This should only be done by an expert,
however, because altering the system's configuration may have significant
unintended results.

If the system administrator is cooperating with investigators, the task
becomes much easier, and agents should use the least intrusive means
possible to obtain the data (e.g., a request, grand jury subpoena, or
administrative subpoena). Of course, if the entire business is under
investigation or there is reason to believe that records may be altered
or destroyed, a search warrant should be used.

[page 50]

2. Data Created or Maintained by Targets

Targets of criminal investigations, particularly computer crimes, may
have data on a multi-user computer system. Where the target owns or
operates the computer system in question, it is safest to use warrants,
although subpoenas may be appropriate in the right case.

Where the target does not control the system but merely has data on it,
the sysop may be willing to provide the requested data assuming he has
the authority to do so. Never forgetting the legal restraints of 18
U.S.C. 2702 (see "Stored Electronic Communications," infra p. 85), the
sysop can, as a practical matter, probably retrieve the needed data
rather easily. Ordinarily, a multi-user computer system will have
specific accounts assigned to each user or groups of users. While the
various "users" may not be able to get into each others' files, the
system operator (like a landlord with passkeys) can usually examine and
copy any file in the computer system. (Typically, the sysop has what is
called "superuser" authority or "root" access.)

Some systems, by their rules, may prohibit the system managers or
operators from reading files in specific data areas or may expressly
limit the purposes for which sysops may exercise their access. In those
cases, sysops may insist on a court  order or subpoena. If, on the other
hand, users have consented to complete sysop access in order to use the
system, a request to the sysop for the information may be all that is
required. In either event, rarely will it be wise for investigating
agents to search large computer systems by themselves. Without the
sysop's help, it may be difficult (if not impossible) for agents to comb
a multi-user computer system the way they search file cabinets for paper
records.

When using a subpoena with a future return date, agents should
specifically ask for the computerized records as they exist at time of
service, and state clearly that service of the subpoena obliges the
recipient to preserve and safeguard  the subpoenaed  information by
making a copy. Investigators should explain that even if the recipient
contests the subpoena, he must not only copy the data "as is," but must
also confirm to the agent that the copy has been made. The subpoena
should also say that failure to preserve the subpoenaed information may
subject the recipient to sanctions for contempt. In some

[page 51]

circumstances, a "forthwith subpoena"  may even be appropriate. If all
this is not done, the data may be altered or erased--deliberately,
accidentally, or in the normal course of business--before the return date
on the subpoena.

3. Limited Data Searches

Once analysts have determined the operating system and have taken
precautions to protect the integrity of the data, they will select tools
to aid in the search. Using specially designed software called
"utilities" will greatly help, because analysts can tailor the search to
look for specified names, dates, and file extensions. They can scan disks
for recently deleted data and recover it in partial or sometimes complete
format. They can also identify and expose hidden files. In some cases,
analysts may find files that are not in a readable format; the data may
have been compressed to save space or encrypted to control access to it.
Here again, utility packages will help recover the data. In designing the
data search, they might use a variety of utilities. Some are
off~the-shelf software available from most computer retailers. But
utility software can also be custom-made, especially designed to perform
specific search functions that are specified in standard laboratory
procedures. Obviously, agents should rely upon experts for this kind of
analysis. (See APPENDIX C, p. 143, for a list of federal sources for
experts.)

There are several reasons why analysts will probably want to do a limited
rather than a complete search through the data. First of all, the law in
general prefers searches of all things--computer data included--to be as
discrete and specific as possible. Second, the warrant may specify
particular files, directories, or sub-directories, or certain categories
of data. Finally, even if the facts of a case give an analyst free rein
to search all the data, the economies of scale usually require a more
systematic approach. At the least, analysts should plan for a methodical
inventory of directories and sub-directories and prepare to document all
the steps taken in the search. Because data is so easy to alter or
destroy, analysts must have a careful record so that their efforts can be
re~created for a court. In examining the data, analysts will probably
have to do some sorting--examining things that could be relevant and
by-passing the unrelated items. Only rarely will they be allowed to or
even want to read everything on the computer system being searched. Even
so, caution is advised, because directory headings and file names may
often be misleading.

[page 52]

In addition to searching by file, sub-directory, or directory, the power
of the computer allows analysts to design a limited search in other ways
as well. Computer experts can search data for specific names (like names
of clients, co~conspirators, or victims), words (like "drugs," "tax,"  or
"hacking"), places (either geographic locations or electronic ones), or
any combination of them. As legal researchers know, if the keyword search
is well defined, it can be the most efficient way to find the needle in
the haystack. But unless analysts are working from a tip and know how the
data is organized, there will probably be some trial and error before
they can find the key words, names, or places. In addition, technical
problems may complicate a keyword search. For example, encryption,
compression, graphics, and certain software formatting schemes may leave
data difficult to search in this fashion.

In the list of files contained in a directory or sub-directory, there
will be other kinds of information that may indicate whether a particular
file should be searched. The names of files in a directory often carry
extensions that indicate what sort of file is or what it does. These file
extensions are often associated with common applications software, such
as spreadsheets (that could hold accounting data), databases (that can
have client information), word processing (which could hold any sort of
alphanumeric text), or graphics. There will also be a date and time
listed for every file created. Although this information can easily be
altered and may be misleading, in some cases it may accurately reflect
the last time the file was revised.

Further, the kind of software found loaded on a computer may reveal how
the computer has been used. If there is communications software, for
example, the computer may have been used to send incriminating data to
another computer system at another location. A modem or other evidence of
remote access should also tip off the searcher to this possibility, which
may expand the investigation and create a need for a new warrant. For
example, the original search may disclose phone bills indicating frequent
long-distance calls to one particular number. If a call to this number
reveals a modem tone, then further investigation would be warranted.

Clearly, the person conducting a computer sear