Search Warrants in the Digital Era

This will be a 2-hour advanced criminal procedure class, designed to acquaint students with the challenges confronting judges as they apply the Fourth Amendment to the bewildering array of search and surveillance techniques available to law enforcement in the 21st century. Various surveillance techniques will be examined, such as cell site simulators, GPS and RFID tracking devices, remote computer access (NITs), biometric identification, facial recognition technology, and automated license plate readers. The novel legal and practical issues generated by computer-based search techniques will be explored, for example: Should the plain view exception apply to computer searches? Are ex ante conditions on computer search warrants necessary, or even advisable? When is compulsion of biometric device identifiers appropriate? Can providers be compelled to decrypt locked cell phones? What are the notice requirements for search warrants directed to service providers? What limits should be placed on border searches of electronic devices? After the Supreme Court's 2018 decision in Carpenter, what rules govern law enforcement access to medical or genetic databases maintained by third parties? How is a cell tower dump order distinguishable from a general warrant? What are the particularity requirements for search warrants seeking electronically stored information? Should there be super-warrant requirements pertaining to minimization and overcollection for such searches? What about extraterritoriality and conflict of law issues raised by U.S. law enforcement access to data stored on foreign servers? Broader policy questions will also be addressed. For example, is it sensible to rely on the exclusionary rule to develop Fourth Amendment doctrine in this "golden age of surveillance"? Are courts or legislatures better equipped to regulate modern police investigations? What lessons can be learned from comparative approaches to police regulation in other countries? The course will build upon foundations laid in the Criminal Procedure--Investigation and Criminal Procedure--Adjudication courses. Those classes touch upon the basics of search warrants and the Fourth Amendment, and both are recommended prerequisites for this class. The next generation of judges, prosecutors, defense attorneys, and civil rights advocates will be forced to apply existing legal precedent to unprecedented surveillance technologies generated by the digital era. This course is designed to help them meet that daunting challenge. Elements used in grading: Attendance, Class Participation, Final Exam.