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.