Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations
REVISED VERSION PUBLISHED JULY 2002
This publication provides a comprehensive guide to the legal issues that arise when federal law enforcement agents search and seize computers and obtain electronic evidence in criminal investigations. The topics covered Internet, the Electronic Communications Privacy Act, workplace privacy, the law of electronic surveillance, and evidentiary issues. This updated version includes discussion of significant changes to relevant Federal law arising from the USA PATRIOT Act of 2001, and supersedes the previous version of "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations," published January 2001, as well as "Federal Guidelines for Searching and Seizing Computers" (1994), and the Guidelines' 1997 and 1999 Supplements.
Federal Criminal Code Related to Searching and Seizing Computers
The USA PATRIOT Act, effective October 26, 2001, resulted in a number of significant changes to various Federal statutes governing the searching and seizing of computers and the gathering of electronic evidence. The Field Guidance memorandum provides an overview of the various ways in which the USA PATRIOT Act has changed the law in this area.
In order to highlight changes in the law resulting from the USA PATRIOT Act, CCIPS has produced a redlined document showing various Federal statutes relevant to computer search and seizure and electronic evidence-gathering issues, and how these statutes have changed under the new law. Please note that this is a draft document designed to provide an overview of recent changes, and may contain typographical errors. It is not an official CCIPS publication.
Below are links to current (post-USA PATRIOT Act) versions of Federal statutes governing computer search and seizure and electronic evidence-gathering:
Searchable databases of the U.S. Code are available through the following links, but users should be sure to note the most recent modification dates to ensure they are viewing the current versions:
Archived Legal Resource Items
Kevin V. Di Gregory, Deputy Assistant Attorney General, testified before the Subcommittee on the Constitution of the House Committee on the Judiciary on July 24, 2000. This statement addressed the law enforcement tool "Carnivore" and its impact on Internet privacy and the Fourth Amendment.
On April 6, 2000, Deputy Assistant Attorney General Kevin V. Di Gregory testified before the Subcommittee on the Constitution of the House Committee on the Judiciary on the subject of the Fourth Amendment and the Internet. His testimony detailed the ways in which the Fourth Amendment protects the privacy of Internet users. Also covered were the new technical challenges that face law enforcement and possible solutions for overcoming these challenges.
Electronic surveillance is one of the most valuable tools in law enforcement's crime fighting arsenal. In many instances, criminal activity has been either thwarted, or, if crimes have been committed, the criminals have been apprehended as a result of lawfully-authorized electronic surveillance. Additional information on this subject is available via the link below.
The dramatic increase in crimes involving the Internet, and computer crimes more generally, is well documented. The "2000 CSI/FBI Computer Crime and Security Survey" documented that 90% of the 643 respondents (primarily large U.S. corporations and government agencies) detected computer security breaches within the last twelve months, totaling hundreds of millions of dollars in losses. In light of the increased criminal opportunities created by the ever-growing reliance on, and growing interconnectedness between network computers, there can be no doubt that experienced and sophisticated computer criminals pose a substantial challenge to law enforcement. Additional information on this subject is available via the link below.
This article explains some of the important issues that can arise when the government seeks the admission of computer records under the Federal Rules of Evidence. It is an excerpt of a larger DOJ manual entitled "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations", which is available on the internet at www.cybercrime.gov/s&smanual.html. Additional information on this subject is available via the link below: