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Date: July 2, 1991
From: Barbara E. McMullen and John F. McMullen (Newsbytes Reprint)
Subject: Law Panel Recommends Computer Search Procedures

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***  CuD #3.24: File 7 of 8: Law Panel and Search Procedures     ***
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 LAW PANEL RECOMMENDS COMPUTER SEARCH PROCEDURES

 WASHINGTON, D.C., U.S.A., 1991 JULY 2 (NB) -- A panel of lawyers and
 civil libertarians, meeting at the Computer Professionals for Social
 Responsibility (CPSR) Washington roundtable, "Civilizing Cyberspace",
 have proposed procedures for police searches and seizures which they
 feel will both allow adequate investigations and protect the
 constitutional rights of the subject of the investigation.

 The panel, composed of Mike Godwin, staff counsel of Electronic
 Frontier Foundation; Sharon Beckman attorney with  Silverglate &
 Good; David Sobel of CPSR, Jane Macht, attorney with Catterton, Kemp
 and Mason; and Anne Branscomb of Harvard University, based its
 proposals on the assumption that a person, in his use of computer
 equipment, has protection under both the Fourth Amendment and the
 free speech and association provisions of the first amendment.

 The panel first addressed the requirements for a specific warrant
 authorizing the search and recommended that the following guidelines
 be observed:

 1. The warrant must contain facts establishing probable cause to
 believe that evidence of a particular crime or crimes will be found
 in the computers or disks sought to be searched.

 2. The warrant must describe with particularity both the data to be
 seized and the place where it is to be found ("with particularity" is
 underlined).

 3. The search warrant must be executed so as to minimize the
 intrusion of privacy, speech and association.

 4. Officers may search for and seize only the data, software, and
 equipment specified in the warrant.

 5. The search should be conducted on-site.

 6. Officers must employ available technology to minimize the
 intrusive of data searches.

 The panel then recommended limitations on the ability of officials to
 actually seize equipment by recommending that "Officers may not seize
 hardware unless there is probable cause to believe that the computer
 is used primarily as an instrumentality of a crime or is the fruit of
 a crime; or the hardware is unique and required to read the data; or
 examination of hardware is otherwise required." The panel further
 recommended that, in the event hardware or an original and only copy
 of data has been seized, an adversary post-seizure hearing be held
 before a judge within 72 hours of the seizure.

 Panel member Sharon Beckman commented to Newsbytes on the
 recommendations, saying "It is important that we move now to the
 implementation of these guidelines. They may be implemented either by
 the agencies themselves through self-regulation or through case law
 or legislation. It would be a good thing for the agencies t o take
 the initiative."

 The panels recommendations come at a time in which procedures used in
 computer investigations have come under criticism from computer and
 civil liberties groups. The seizure of equipment by the United Secret
 Service from Steve Jackson Games has become the subject of litigation
 while the holding of equipment belonging to New York hacker "Phiber
 Optic" for more than a year before his indictment has prompted calls
 from law enforcement personnel as well as civil liberties for better
 procedures and technologies.

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