The part of the David Petraeus sex scandal that drew most people’s attention, I’m willing to bet, was not the sex part. It was the discovery of the sex—the accidental discovery of the affair by federal agents investigating something else.
Commentators have made a big deal about the scandal hastening passage of a Senate bill that would require federal agencies to get a warrant to access cloud-based email (like Gmail).
The bill is a good start. Mail is mail, and email should be treated like snail mail for constitutional purposes.
But a warrant requirement wouldn't address the more fundamental constitutional issue at the heart of the Petraeus investigation, and of many thousands of others you'll never hear about: the accidental discovery, during warranted computer searches, of unexpected evidence unrelated to the warrant.
That is almost certainly what happened in the Petraeus investigation, and the Senate bill would have no effect on such discoveries, which are called “plain view” discoveries. The Petraeus case is a great opportunity for us, the computer-using public, to think about the ramifications of the “plain view” doctrine for computer searches.
“Plain view” is a corollary of the “particularity requirement” of the Fourth Amendment. Search warrants must particularly specify the place to be searched, the items sought, and the crime being investigated.
The reason we have that rule in the Constitution is that the framers were particularly aggrieved by the “general warrants” issued by the British, which gave an investigator blanket permission to search whatever he wanted, for whatever he wanted.
Of course, you might have to rummage through a lot of stuff to find the thing you're looking for, and the courts have created the “plain view” rule in recognition of this fact. The rule is simple: if I have a warrant to look in a particular place (a house, say) for a particular thing (a gun, say), then as long as I am looking in a place where that thing could be hidden, I get to keep— and use in court—any other incriminating evidence that I happen to stumble upon.
The justification is that whatever I can see in “plain view” in a place I am legally entitled to be looking is constitutionally seizable.
So let's say I have a search warrant for a house, specifying that I'm looking for guns because I have probable cause to believe that the owner of the house is trafficking guns. I can search anywhere in the house guns might be found— under the bed, in the garage, in the cabinets. Anything I find in those places is admissible evidence, including things that I was not expecting to find: drugs, say, or a severed head.
As long as I found it in a place that could have concealed a gun, it is within the “plain view” of my lawfully authorized search.
But I cannot, on the basis of that warrant, tear open envelopes, unroll balled-up socks, or open pill bottles, because guns cannot be hidden in envelopes, socks, or pill bottles. Adding “bullets” to the list of items to be seized helps somewhat in this regard, but still I will not be able to seize the computer's hard drive and make a copy of it.
Ok, so I add to my warrant the following statement: “Based on my training and experience, I have probable cause to believe that gun traffickers typically maintain lists of contacts, suppliers, customers, inventory, and accounts, and that said lists may be stored on any physical or electronic medium.”
Will the court really let me get away with that? You bet. If you're a prosecutor and you can't figure out a way to get a computer search as part of your investigation, you're not doing your job. And when you get a computer search, even if you have probable cause for only a single document, you get to look at every single file on the computer. That's because the methods by which computer hard drives are searched for evidence involves reading every single file.
This is necessary because it's impossible to know what a given file is without reading it.
Anyone who's ever worked on a law-enforcement investigation is aware of the possibility that a completely serendipitous lead may turn up as you interview witnesses or comb through evidence. But with computer searches it's almost inevitable.
So now that I have my computer-search boilerplate in my warrant application, I get to search the files of any computer I find for any gun-trafficking-related materials. But here's the great part for law enforcement: I have no way of knowing which files on the computer, if any, are the gun-trafficking-related files my warrant describes, unless I read every single file on the computer.
And since I have to examine every single file to make sure I find the ones specified in the warrant, every single file is in “plain view” for purposes of the Fourth Amendment.
That's the way courts currently interpret the “plain view” rule. But does it really make sense to say that every single file should fall within the “plain view” exception?
This used to be mostly an academic question. But it's taken on great urgency recently, because electronic storage costs have dropped to next to nothing, so that people can—and do—store basically every document, image, email, video, and anything else they create or receive in their computer. The metaphorical “file cabinet” now contains your whole life.
So think about the Broadwell case.
Tampa socialite Jill Kelley calls Frederick W. Humphries II, an FBI agent who may or may not have a crush on her (and in any event is willing to do some extracurricular investigating for her), and tells him that someone's been sending her nasty emails.
Humphries investigates, finds out the ISP addresses from which the messages were sent, and determines that an account assigned to Paula Broadwell was using those same ISP addresses at the same times.
Leave aside for a moment the ethical and legal questions surrounding an FBI agent acting as “personal assistant with a badge.” The much more interesting and pressing question is this: should an investigation into email harassment necessarily expose to the investigators every single file on Broadwell's computer?
Recall that no one was investigating Broadwell's sex life; no one was investigating Petraeus' sex life; the only question the FBI was investigating was whether Broadwell had committed a crime in sending nasty messages to Kelley. (The answer turned out to be no.)
One response is to say yes, of course, absolutely, every file on any computer searched for any reason should be available. After all, as I just noted, there's no way to be sure you're getting all the material covered in your warrant without examining everything.
But there is another possibility: what if one person (or team) went through all the files, identified the ones that were responsive to the warrant (that is, constituted evidence of the crime specified in the warrant), gave those to the investigating team, and then destroyed the rest?
This kind of document screening is run-of-the-mill for law firms, after all: they do it with discovery requests, and they also do it internally, when an attorney at the firm has a conflict.
If such a system were in place, then a person being investigated for insurance fraud, say, who also had pirated movies stored on his laptop, would not also be charged with pirating the movies. If the suspect's computer were searched pursuant to an insurance fraud warrant, the screening team would identify all insurance-related files, turn those over to the investigating team, and destroy everything else. The investigating team would never know that there were pirated movies on the computer. Law enforcement would literally close its eyes to the pirated-movie evidence.
Do we want such a system in place?
It depends on how we balance the pros (crimes foiled through accidental discovery of computer evidence) against the cons (total exposure of all files in every single computer search).
And that con has a constitutional dimension: the Fourth Amendment's requirement that warrants particularly specify the places to be searched and things to be seized. There's a strong argument that the general expansion of the “plain view” rule to computer files is too much for the text and history of the Fourth Amendment to bear.
A number of commentators have proposed statutory solutions eliminating plain view for computer searches. Orin Kerr, probably the most influential commentator on computer searches, suggests that such a measure, though drastic, “may eventually prove the best way to restore the function of the Fourth Amendment in a world of digital evidence.”
I'm not hopeful that Congress will agree on anything like that, but individual states certainly might. And what would happen if they did? What would the practical result be of the loss of all those “get-lucky” busts?
Well, it almost happened, for part of the country, at least. For a one-year period, from Aug. 26, 2009 to Sep. 13, 2010, the entire western United States almost had such a screening regime imposed by order of the United States Court of Appeals for the Ninth Circuit .
I'll explain the “almost” in a moment. First, the case:
On August 26, 2009, the Ninth Circuit issued an en banc decision (meaning 11 judges, not just 3, decided the case) in the Comprehensive Drug Testing case, which readers may remember as part of the investigation that ended the steroid era in baseball and exposed Barry Bonds, among others, as a steroid user.
The case involved more or less exactly the investigative pattern we saw in the Kelly/Broadwell/Petraeus case. A particularly zealous federal investigator followed a lead and got a search warrant for particular computer files. But of course, in order to get the files he had a warrant for, he had to read all of the files on the computer, including thousands that he didn't have a warrant for.
The agent, Jeff Novitzky, had a warrant to read the results of Barry Bonds' drug tests—but not those of other players. But he went ahead and read all the other test results as well, under the “plain view” theory. Thus we got the Mitchell Report, the Congressional hearings, the Clemens trial, and so forth. (And, thankfully, we got a league that stopped juicing and started playing better fundamental baseball.)
The Ninth Circuit looked at the case and saw it as the absolute embodiment of the overbreadth of the “plain view” rule.
It simply doesn't make constitutional sense, the court held, that the legal right to read one document on a computer always implies the legal right to read every other document on the computer. There has to be a way to limit “plain view” for computer searches.
So the court came up with the following rules for computer searches:
- “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”
- “Segregation and redaction must be either done by specialized personnel or an independent third party. 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.”
- “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.”
I'm curious how The Crime Report readers without criminal investigation experience see these rules.
What's your reaction: Is it “Duh— obviously we should have some sort of segregation and redaction procedure!”? Or is it “What? This would cripple law enforcement!”
We never got a chance to find out, however.
The government and the court had a staring contest, and the court blinked. The government moved for re-hearing by the full 32-member court (something that has never been done), and the court stayed its order, sat on the motion for a year, and then, on Sept. 13, 2010, issued a revised opinion with the new rules stripped out and reduced to a concurrence (that is, a separate non-binding opinion) signed by only five out of the 11 judges on the en banc panel.
And only then did the court issue its mandate. So the new rules that would have either restored our computer privacy or crippled law enforcement, depending on your politics, never actually took effect.
If they had, and if the FBI had followed them, and if Petraeus had been based in San Diego rather than Tampa, then there's a good change Agent Frederick W. Humphries II would never have gotten his hands on all the good sex stuff.
The independent screening team would have had to give him only material covered by the warrant, which would only have covered alleged cyber-stalking.
Why did the Court (or, more precisely, Judges Graber, Wardlaw, and Berzon— the three judges who voted for the new rules the first time but not the second time) change its mind?
We'll probably never know, but I bet there's quite an interesting trove of judge-to-judge correspondence for some future historian to pore over if any of it is ever released.
And I wonder if—just maybe— a more sympathetic fact pattern might have persuaded them to hold their ground. Think about it: the architect and linchpin of national security policy in the Middle East, forced to resign in disgrace because some FBI agent in Tampa had a crush on a socialite?
The loss of Petraeus is a much bigger deal than the exposure of some juicing ballplayers—and a textbook example, if we needed one, of why the Ninth Circuit was on the right track.
Caleb Mason is an attorney at Miller Barondess LLP in Los Angeles, and a former federal prosecutor. He welcomes comments from readers.