US v. Ganias and the Fourth Amendment right to delete

For those with more than a passing interest in the Fourth Amendment, I highly recommend Orin Kerr’s coverage of the very important Second Circuit computer search case US v. Ganias.

The ruling creates a Fourth Amendment right to the deletion of files that are over-collected pursuant to a computer search.  Computer searches often involve over-collection of data.  For example, the government will seize a computer and copy the entire hard drive, even though only a fraction of the files in the drive are responsive to a warrant.  This practice is tolerated because, among other things, it reduces the likelihood that the suspect will destroy evidence, and it tends to be less burdensome than confiscating the computer itself.

The Second Circuit’s decision creates a bookend to that tolerated over-collection.  The decision requires the government to delete computer files that are (1) copied as part of a judicially authorized computer search and (2) found (after the fact) to be unresponsive to the warrant authorizing the search.  It also impliedly requires the government to make reasonable efforts to segregate responsive from unresponsive files in computer searches, which almost always involve over-collection of data. The exact application of these rules — such as how long the government can retain data over-collected pursuant to a computer search before having to purge unresponsive files — is still unclear.

The case could have a significant impact on police investigations in the Second Circuit. In addition to changing the way future computer searches are conducted, the case seems to have immediate implications for data currently sitting in government databases, if that data was collected before the court’s ruling pursuant to a computer search.  (The government previously assumed it had a right to retain those files indefinitely; the Court’s ruling seems to have extinguished that argument).

The case may also spawn a torrent of Rule 41(g) motions for return of “property” — here, the copies of files made by the government pursuant to a computer search. And it will raise questions about whether the Fourth Amendment’s right to delete should extend to cases of government over-seizure / over-copying of data outside the context of computer searches.  I’m hoping to say a bit more about the case in the coming days, so stay tuned.

UPDATE: Orin just posted again on Ganias here.

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