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Re: [infoguys-list] Interesting Case Law May Impact Digital Evidence Investigations

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  • Bob Hrodey
    ... Most likely, straight up to the Supreme Court. This is too much of a slippery slope involving the plain view doctrine. What next from that wacky,
    Message 1 of 2 , Sep 4, 2009
      rmriinc wrote:
      > I found this post on another group I am on. And I read about this case last week. I think this case could really have an impact on Investigations that involve Digital Evidence Gathering,
      > [snip]
      > http://www.ca9.uscourts.gov/datastore/opinions/2009/08/26/05-10067eb.pdf
      > According to this case Law Enforcement will only be able to confiscate
      > files specified by the warrant and the Warrant is supposed to be
      > specific. According to my reading you won't be able to image the
      > hard-drive but will need to conduct an on-site live-search. The Ninth
      > further outlines their guidelines as so:
      > 1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.
      > 2. Segregation and redaction must be either done by specialized
      > personnel or an independent third party. See pp. 11880-81 supra. If
      > the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
      > 3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.
      > 4. The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.
      > 5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.
      > [snip]
      > I am kinda curious to see where this is going to go....

      Most likely, straight up to the Supreme Court. This is too much of a
      slippery slope involving the plain view doctrine. What next from that
      wacky, wonderful clowns at the "Notorious Ninth?"

      I have not read the decision but based upon Rick's post, does anyone see
      a Catch-22 with paragraph #5? (there are likely more but this jumped out
      at me.)

      The government muse develop a protocol to insure that ONLY material as
      described in the search warrant is examined. They then tell you, in the
      same decision, that the government must either destroy or return (if not
      contraband) "non-responsive" data that they aren't even supposed to be
      looking at. To me, this is comparable to saying: "Here's a box of
      fifteen thousand marbles. In that box there are one hundred blue
      marbles (purchased with proceeds from drug sales) and the rest of them
      are either black or white. You are hereby directed to take the box to a
      dark room and retrieve only the blue marbles. The remaining marbles
      must be returned - but not the three thousand WHITE marbles (kiddie
      porn), which you must destroy as contraband."

      On it's face, this is typical crap from the land of fruits and nuts.


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