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Donald Dripps: Digital Evidence and the History of Private "Papers" as Special Objects of Search and Seizure
Michael Ramsey

In the Journal of Criminal Law and Criminology, Donald A. Dripps (University of San Diego Law School): "Dearest Property": Digital Evidence and the History of Private "Papers" as Special Objects of Search and Seizure (103 J. Crim. L. & Criminology 49 (2013)).  From the introduction:

Why does the Fourth Amendment distinctly refer to “papers” prior to “effects”? Why should we care?

The inquiry is interesting for the usual reasons legal history is interesting—those who look may find a compelling story that provides the surest foundation for understanding modern doctrine. In this case, however, there is an additional and urgent reason for caring about history. Modern doctrine is in deep trouble and needs all the help it can get.

For more than a century, the Supreme Court adhered to the doctrine of Boyd v. United States, granting private papers an extraordinary exemption from seizure, even under warrant.  Then, during the last quarter of the twentieth century, the Supreme Court began effectively to equate “papers” and “effects.”  Another line of modern cases established “bright-line rules” that gave the same constitutional treatment to all “effects.”

Twenty-first century technology makes these doctrines problematic. Portable devices like cell phones and flash drives are “effects” subject to search and seizure like briefcases and backpacks. Given the enormous quantity and sensitive content of the information digital devices hold, equating them with other “effects” has troubled courts and commentators. In computer search cases, the police may have probable cause and be able to describe particularly what they are seeking. But the disturbing feature is the volume of innocent and intimate information that must be exposed before the criminal material is discovered. This pooling of small quantities of criminal evidence with large quantities of innocent and intimate information is not new. It appeared in a great controversy over general warrants, libels, and seizure of papers that erupted in England in the 1760s.

This Article argues that the history of seizing “papers” explains why the Amendment uses the term and offers the opportunity to ground special Fourth Amendment rules for digital evidence. For originalist judges the pertinence of history is obvious. History is important, however, for any theory of constitutional interpretation more formal than brazen realism.  In this instance, history might help to reconcile Fourth Amendment doctrine with the widespread sense that some effects are categorically more private than others.

The Fourth Amendment refers to “papers” because the Founders understood the seizure of papers to be an outrageous abuse distinct from general warrants. The English courts and resolutions of the House of Commons condemned both abuses distinctly. The controversy was closely followed in America, where colonial Whigs sympathized with, and even idolized, John Wilkes, who successfully sued for damages for the seizure of his papers. America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute until the Civil War. The one Founding-era attempt to authorize seizing papers by statute was condemned as contrary to common law and natural right and never passed into law. Although Congress authorized seizing papers to enforce the revenue laws during the Civil War, it took until the 1880s for a challenge to reach the Supreme Court. That challenge was Boyd, which remained the law for another ninety years.

Boyd rightly held that “papers” deserve more constitutional protection than “effects.” Special protection does not, however, ineluctably mean absolute immunity. The seizures that aroused outrage in the 1760s were indiscriminate, expropriating, unregulated, and inquisitorial. A regulated, discriminate, and nonrivalrous process for inspecting documents is different.

This is a great paper that I saw presented in San Diego earlier this year; it is very interesting in its use of founding-era material to answer practical questions involving modern technology.