Issue 3
Warrantless Searches in a Digital World: Limiting the Private Search Exception for Computer Investigations
The “Private Search” exception to the Fourth Amendment allows law enforcement officers to re-create, without a warrant, a search conducted by a private individual, provided two conditions are met. First, the individual may not act at the behest of the government (the agency prong) and second, officers may not search beyond what was already discovered by the private searcher (the scope prong). The exception is premised on the theory that the private searcher destroyed whatever expectation of privacy the suspect had in his information, thereby eliminating any Fourth Amendment protection. In applying this otherwise well-understood exception to searches of computers, however, courts have adopted widely varying approaches based on divergent assumptions and leading to dramatically different results. This Note argues that, because of the nature of computer storage, courts should narrow the application of the private search exception by broadly interpreting the “agency” prong and narrowly interpreting the “scope” prong. Such an approach maintains the purpose of the exception without unduly sacrificing informational privacy or law enforcement efficacy.
Record Viewership: Towards a Theoretical Framework for the Video Record
It has been almost thirty years since the use of videotapes to create trial records began to gain acceptance in this country, but many questions linger about the impact of video records on issues related to appellate review. While there has been a recent movement towards the expansion of video record use in lieu of court stenographers, many states continue to use both methods and the replacement of stenography with video records is highly controversial. The argument has recently been made that the video record is both more accurate and cost-effective than stenography, but the implications of thoroughly integrating video into the court system have not been fully considered. Particularly in the area of appellate review, a theoretical framework is needed to facilitate decision-making about the integration of the video record into American jurisprudence. This Note examines the current debate over which method of creating a trial record is preferable, analyzes potential legal issues created by a switch to video recording, and argues that a transition to the video record must be accompanied by a detailed, carefully considered framework for appellate review. Finally, this Note proposes a basic theoretical framework for dealing with the most important known ramifications of a transition to the video record.