In federal district court in Washington, DC, Judge Colleen Kollar-Kotelly handed down two opinions in the last two weeks in a case involving Daniel Richman, a friend and occasional advisor to former FBI Director James Comey. In the first opinion, dated December 12, the Judge ordered the government to return to Richman digital copies of the contents of his computers. In the second opinion, released yesterday, Judge Kollar-Kotelly clarified her first order and addressed government objections.
There's a lot going on in these cases. But the opinions happen to raise important questions of how the Fourth Amendment and the Federal Rules of Criminal Procedure apply to searching and seizing computers. Given my academic focus on those legal issues, I thought I would blog about them and offer some thoughts for the law nerds hoping to learn more about those legal issues and how this new set of opinions deals with them.
Here's the basic problem. When the government gets a warrant to search a computer, it generally seizes the physical device, copies all the data, and then searches the government's copy of the data for the evidence sought. Put another way, investigators make a copy of the digital haystack and then search the copy for the needle that the warrant described as the evidence to be sought.
