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Massive Hard Drives, General Warrants, and the Power of Magistrate Judges

Most legal scholars who write at the intersection of technology and the Fourth Amendment spend much of their time building upon Professor Orin Kerr’s many clear and insightful articles, and I am no exception. It is thus with great respect and deference that I explain what Professor Kerr gets wrong in his latest article, Ex Ante Regulation of Computer Search and Seizure.

In Ex Ante Regulation, Professor Kerr tries to disrupt a trend emerging from the lower federal courts: the imposition by magistrate judges of limits on what the police can do with a search warrant for digital evidence stored on computer hard drives. These judges have tried to impose a diverse set of requirements and restrictions on these warrants—catalogued by Professor Kerr—such as limits on how long the police can retain a computer and what they can do when they examine its hard drive.

Professor Kerr offers both doctrinal and normative arguments against ex ante search warrant restrictions. His doctrinal arguments are the more provocative ones: he thinks ex ante warrant restrictions like these are lawless acts, beyond the constitutional and statutory power of magistrate judges. I disagree, and in this Essay, I respond almost entirely to these arguments, because if they are correct, then a normative debate is almost beside the point.

For support, Professor Kerr points to four Supreme Court cases which, as he concedes, “[v]iewed in isolation . . . do not definitively rule out the lawfulness of ex ante restrictions on the execution of computer warrants,” but which he claims, “[t]aken together . . . undercut every aspect of the lawfulness of such restrictions.” I respectfully disagree. Two of the cases are easy to distinguish, as Professor Kerr seems to concede.

The Confrontation Clause and the High Stakes of the Court’s Consideration of Briscoe v. Virginia

IN October Term 2008, the Supreme Court handed down Melendez-Diaz v. Massachusetts—the latest case in the Crawford line under the Confrontation Clause. In Melendez-Diaz, the prosecution sought to introduce an affidavit by a forensic analyst that stated a given substance was cocaine. The defendant objected, arguing that the Confrontation Clause required that the analyst testify in person. Justice Scalia, writing for a five-Justice majority that included Justices Ginsburg, Souter, Stevens, and Thomas, held that the reports of forensic analysts are “testimonial,” and thus a prosecutor can only introduce such a report if the analyst is subject to “confrontation,” or if the defendant waives that right.

The Court handed down Melendez-Diaz on a Thursday. The following Monday, the Court granted certiorari in Briscoe v. Virginia. In that case, the Supreme Court of Virginia—writing one year before Melendez-Diaz—had assumed that an analyst’s report was “testimonial,” but it held that the confrontation right was satisfied by a Virginia statute that allowed the defendant to call the analyst as an adverse witness during the defense phase of trial. The Court heard arguments in Briscoe on January 11, 2010.

This essay will explore the options and compromises available to the Court in Briscoe. Moreover, it will explore how these various options can be used as a vehicle to shape future jurisprudence under the Confrontation Clause.

Clear Rules—Not Necessarily Simple or Accessible Ones

In The Complexity of Jurisdictional Clarity, Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. With his typical aplomb, Dodson disentangles the concept of clarity from the analytically distinct, though often conflated, debates over rules versus standards and mandates versus discretion. He critically examines the many difficulties that render the creation of clear and simple jurisdictional rules utopian. And he tallies the traditionally uncounted costs of jurisdictional clarity. Dodson’s piece is perceptive, challenging, and thought provoking.

In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity-enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple, and accessible. In the third section, I contend that a focus on clarity in isolation, in lieu of simplicity or accessibility, both furthers Dodson’s project of illustrating that the value of clarity is often a false idol and reveals the inherently empirical nature of the question. I close by noting that although Dodson’s piece importantly demonstrates that jurisdictional clarity comes at a cost, his inability to resolve these underlying empirical questions makes it unlikely that he will quiet those advocating clarity-based jurisdictional reform.

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