Along with several other advocacy groups, EFF signed on to an amicus brief this week in the case of the Commonwealth of Massachusetts v. James Keown, in support of requiring courts to set pre-search limits on the method of digital searches by law enforcement pursuant to judicially authorized warrants.
Keown was charged with murdering his wife after she died of an apparent poisoning. The evidence against him included a forensic search of his laptop, which revealed web searches for homemade poison. Although the police got a warrant to do this forensic examination, it allowed them to conduct a nearly unfettered search of the computer.
Searches of digital devices—in this case, a laptop—are different from searches of physical spaces, both in the scale of information at issue and the way in which that information is stored. The unique features of digital devices and the enormous amount of information stored on them make Fourth Amendment protections all the more important to uphold, especially with respect to the “particularity” requirement. In order to avoid general searches, the Fourth Amendment requires that in addition to demonstrating probable cause, a warrant must “particularly describ[e] the places to be searched and the persons or things to be seized.” In the brief, EFF asks the Court to set explicit limits on the scope of digital searches by outlining concrete categories of relevant information prior to the warrant’s execution – a series of ex-ante search protocols – to ensure that the government does not exceed its authority when executing a search warrant on digital devices and information.
Ex-ante search protocols—such as limits based on date, time, recipient or sender identities, types and sizes of files, etc.—tailored to the law enforcement inquiry for which probable cause has been established, can assure magistrate judges that a search will be limited as much as possible to only the relevant information sought and justified in the warrant application.
Massachusetts should join the courts that have begun to move toward ex-ante protocols to bolster Fourth Amendment protections. The issuance of a search warrant for a specific file or piece of evidence should not give law enforcement carte blanch to generally search all of the digital information stored on your device. Because such ex-ante search protocols were needed in Keown’s case, but were not used, we argue the evidence seized from his laptop should be suppressed.
You can read our amicus brief in full below.