Sunday, June 01, 2008

Case o' The Week: Computer "Containers" Theory No Longer Contained, Giberson

Senior Judge Wallace (left) authors a devastating opinion on the Fourth Amendment and computers. United States v. Giberson, __ F.3d __, 2008 WL 2221008 (9th Cir. May 30, 2008), decision available here.

The opinion's casual extension of the "open container" Fourth Amendment exception to
computers merits en banc review.

Hard-fought appeal by Nevada AFPD Jason Carr.

Facts: Giberson was suspected of creating fake ID’s. [WL page cites not yet available.] The first search warrant authorized seizure of records and documents; though it didn’t mention computers, the feds seized Giberson’s anyway.

The second warrant authorized a search of the hard drive mirror image for records relating to the fake ID cards; the forensic examiner found child porn.

A third warrant authorized a search for child porn; 700 images were found.

Issue(s): 1. Particularity of Search Warrant: “[W]hether a warrant that describes particular documents authorizes the seizure of a computer where, as here, the searching agents reasonably believed that documents specified in the warrant would be found stored in the computer.”

2. Scope of Forensic Search:
“Giberson also argues that the evidence obtained from the search of his computer should have been suppressed because the government did not sufficiently limit its search to relevant documents.”

Held: 1. Particularity: “Here, numerous documents relating to the production of fake I.D.’s were found in and around Giberson’s computer and were arguably created on and printed from it. It was therefore reasonable for officers to believe that the items they were authorized to seized would be found in the computer, and they acted within the scope of the warrant when they seized the computer.”

2. Scope of Forensic Search: “[I]n this case, based on the technology available to him for search Giberson’s computer, [the forensic analyst’s] search was reasonable; the pornographic material he inadvertently discovered while search for the documents enumerated in the warrant was properly used as a basis for the third warrant authorizing the search for child pornography.”

Of Note: In a cursory analysis Giberson appears to extend the profoundly disturbing Fourth Amendment “container” theory to computers:
Computers, like briefcases and cassette tapes, can be repositories for documents and records. We have not yet had occasion to determine, in an opinion, whether computers are an exception to the general principle that a warrant authorizing the seizure of particular documents also authorizes the search of a container likely to contain those documents. We hold that, in this case, where there was ample evidence that the documents authorized in the warrant could be found on Giberson’s computer, the officers did not exceed the scope of the warrant when they seized the computer.

For that paragraph alone, this case cries out for
en banc review.

How to Use: In Giberson the agents seized the computer, then obtained a second warrant to search the mirrored hard drive. As the Court explains, “[The agents’] actions were particularly appropriate because the agents merely secured the computer while they waited to get a second warrant that would specifically authorize searching the computer’s files.” The decision (arguably) does not stand for the proposition that a validly-seized computer can be searched without a warrant, and without goal-driven analysis, for any data the agents happens to think is of interest.

For Further Reading: Giberson is an important (and bad) decision that (again) ignores the realities of technology by applying hoary old Fourth Amendment analogies (a computer is akin to a briefcase?) Only Judge Schroeder on the Giberson panel was an active Circuit judge (she sat with Senior Judge Wallace, and District Judge Benitez).

Giberson is reminiscent of the lousy Kelley decision, with a visiting Justice; or the lousy Barken decision, with a visiting senior circuit judge; or the lousy Hosvaldo Lopez case, authored by a visiting district judge; or the lousy Crews case, authored by a visiting senior, district judge.

See a trend?

Here’s hoping for a slew of new ‘09 appointments, to stave off these strangers to the Ninth. For an interesting discussion of the curious impact of visiting judges, see Sara C. Benesh, The Contribution of “Extra” Judges, 48 AZLR 301 (2006).

Steven Kalar, Senior Litigator N.D. Cal. Website at


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Anonymous Anonymous said...

What exactly is so lousy about the decision besides you not approving of its result? A computer often operates as an storage device for word processing files, similar to an electronic filing cabinet. How is the comparison so inapt?

Thursday, June 05, 2008 1:29:00 PM  
Anonymous Anonymous said...

Dear Anonymous:
One of the many ways in which the computer-container analogy breaks down is the sheer volume of information stored in a computer. For example, probable cause to find one sheet of paper may permit a search inside the entire contents of a briefcase. With the limited contents of a briefcase, however, there is a limited injury to privacy interest.
With a computer, by contrast, one gigabyte of memory is equal to 75,000 printed pages of text -- or more. Computers routinely now feature drives of 80 gb or more. Hence, a computer is no more a "container" than an office space is a "container," or than an entire warehouse packed full of printed archives is a "container."
A search of a computer results in a far greater injury to privacy interests because there is a quantum difference in the volume -- and privacy -- of the information revealed than in a normal "container." For example, Anonymous, a search of your computer would reveal exactly who posted this anonymous comment.

Steven Kalar, Senior Litigator N.D. Cal. FPD.

Thursday, June 05, 2008 5:41:00 PM  
Anonymous Anonymous said...

So a computer is a BIG container!

Monday, June 16, 2008 5:03:00 PM  
Anonymous Anonymous said...

I have to agree with my other Anonymous poster..... you mention that you see a trend....... the trend I believe you are speaking of is precedent...... not only did the agents here convince one judge of probably cause for a warrant..... but on three occasions reference the same case..... that fact that a computer may contain a large volume of data is moot. you could certainly store a very large amount of data in a office space or building and still execute a warrant for a single item... the burden is probably cause that there is evidence related to the crime there. The amount of other unrelated items around it is not of concern.

Thursday, July 17, 2008 12:13:00 PM  
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Monday, October 06, 2008 3:13:00 PM  
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