The cutting edge of search and seizure law, computers and cyberspace, is a subject of great interest, particularly since the trailing edge is so darn depressing.  Orin Kerr had recently published a  series of posts arguing that the law should be “technology neutral” in its approach to the digital world,  As I’ve since learned, this is similar to the view espoused by 7th Circuit Judge Frank Easterbrook in his 1996 law review article,  Cyberspace and The Law of the Horse.

In another post on the collateral issue of computer data, Orin did something rarely seen in academia.  He conceded that he was wrong.  In a 2005 article in the Harvard Law Review, he reluctantly argued that the computer data could not, by definition, be the subject of a seizure unless it happened to come along with the whole computer. 

[T]his essay offers a correction of some of my prior work. In a 2005 article published in the Harvard Law Review, I concluded somewhat uncomfortably that copying should never be considered a Fourth Amendment seizure. At the time, I was influenced by the cases holding that photographing and writing down numbers were not a seizure, as well as by what seemed to be considerable practical problems with calling all copying a seizure. I now see I was wrong.

I remember the last time I was wrong in an article of mine for the Harvard Law Review.  Oh wait. I’ve never had an article in the Harvard Law Review.  I guess that means I was never wrong there, which is why Orin’s thoughts on the subject are so much more worthy of discussion than mine.

When I read Orin’s latest iteration of computer data seizure, from whence the above quote comes, I found myself so myopic that I could not grasp the problem.  What “considerable practical problems” could he possibly be talking about?  I couldn’t even begin to imagine what so troubled him that he was constrained to conclude the exact opposite of what was painfully obvious to me.  Fortunately, Orin was willing to connect the dots for me.

Pointing to pages 560-2 (and thus saving me the pain joy of reading the entire HLR article, I came to appreciate the issue.  It’s hardly complicated at all, but rather evinces a somewhat slavish literalism:  In “seizing” computer data, law enforcement doesn’t usually take physical custody of the hard drive, but rather makes a mirror image of the content for later perusal and reflection.  In other words, there is no literal seizure of a physical thing.  Just as taking a photograph (or capturing an image) cannot be a seizure, Orin analogized the imaging of data to fall outside the 4th Amendment sphere.

Judge Easterbrook’s explanation was that law, hopefully overarching, was conceptually sound enough to accommodate technological change, which in any event moved too fast to keep up with in any event.  Orin, however, realized that this issue outran the horse.

What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This essay argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the course of its possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying that function to the new environment of computers.

While the precise parameters of Orin’s reasoning won’t be known until the Yale Law Review, where it will be published since Harvard Law Review contains so many erroneous articles, comes out, I’m going to take a leap of faith and speculate as to what turned Orin around.

The 4th Amendment was designed to protect the privacy of the individual from the intrusion of the government, so that we need not fear that they could look under our covers at will.  The fact that technology has eliminated the need to grab us, our covers and whatever else the government could get its hands on, from actual physical seizure doesn’t obviate the purpose of protecting our privacy, but alters merely the literal means required to do so.  While literalists demand slavish adherence to 18th Century understanding of the world, this one transcends the problem of physical seizure.

What makes computer data, and cyberspace if I can be so bold as to extend the argument, is that it is more akin to our diary than anything open to others to observe.  Within the four walls of our computers, we keep our thoughts, our images, and a deep view of the full panoply of interests that occupy that dark, dank place we call our mind.  Sometimes we send a tiny bit of its contents to other people, and sometimes we reveal a tiny bit to everyone, but rarely do we open it all up for others to see.  The data on our hard drive is our sanctum sanctorum, and to the extent we share its contents, it’s our choice.  If there is any analogy to be adequately made, it’s like talking to a friend and revealing only so much of our personal lives as we want them to know.  No matter how much we tell, there’s always something held back.  It’s ours alone, and no one can peer into our mind to learn it.

But they can peer into our computer and see whatever secrets we’ve hidden there.  Mind you, they may not have the slightest clue why we’ve chosen to force bits of data to reside on our secret drive, and may well draw ridiculously wrong conclusions from finding it and misapprehending (or conveniently apprehending, as the case may be) our purposes.  But that’s true of most everything that comes into the clutches of law enforcement.

None of this, of course, should be attributed to Orin Kerr.  I’m just making this stuff up as I go along, and I haven’t even used the word “normative” once, meaning that my views are clearly colored by my trench lawyer 4th Amendment bias.  Still, it’s important that criminal defense lawyers both recognize and do whatever they can to influence scholars in this cutting edge area for two very real reasons. 

First, chances are much better that Orin Kerr, his brethren or his acolytes will be getting sized for a black robe with velvet stripes long before me (or you), making his thoughts on the subject a lot more real than ours.

Second, even if Orin is never shown big bench love, he gets to have his thoughts published in journals bearing Ivy League names, while I only get to post on this stinky blawg because I know the password.  He’s influential.  I’m, at best, prolific.

And as we move deeper into the 21st Century and beyond, the application of our beloved Constitution to realms wholly unforeseen by our forefathers will mean the difference between constitutional vitality and cyber-erosion of freedom.  The old gray mare just ain’t what she used to be.