UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL GUIDELINES
FOR
SEARCHING AND SEIZING COMPUTERS
PREFACE
These Guidelines are the product of an interagency group, informally called
the Computer Search and Seizure Working Group. Its members were lawyers,
agents, and technical experts from the Federal Bureau of Investigation;
the United States Secret Service; the Internal Revenue Service; the Drug
Enforcement Administration; the United States Customs Service; the Bureau
of Alcohol, Tobacco, and Firearms; the United States Air Force; the Department
of Justice; and United States Attorneys' offices. Most of us have consulted
widely within our own agencies to find the diversity of opinion on these
topics. Our object was to offer some systematic guidance to all federal
agents and attorneys as they wrestle with cases in this emerging area of
the law. These Guidelines have not been officially adopted by any of the
agencies, and are intended only as assistance, not as authority. They have
no regulatory effect, and confer no right or remedy on anyone. Moreover,
the facts of any particular case may require you to deviate from the methods
we generally recommend, or may even demand that you try a completely new
approach.
Many of our recommendations must be tentative, because there is often so
little law directly on point. As the law develops and as technology changes
(thereby altering or even transforming our assumptions), the Working Group
may well find itself a Standing Committee with open membership.
If you have any comments, corrections, or contributions, please contact
Marty Stansell-Gamm at the Computer Crime Unit, General Litigation Section,
Department of Justice (202-514-1026). As you confront these issues in your
practice, we will be eager to hear about your experience and to assist
in any way we can.
-
Scott C. Charney,
-
Chief, Computer Crime Unit
-
Martha J. Stansell-Gamm
-
Computer Crime Unit
-
Chair, Computer Search and Seizure
-
Working Group
-
General Litigation and Legal
-
Advice Section
-
Criminal Division
-
Department of Justice
Table
of Contents - Main Federal Guidelines
Supplement
- Preface
INTRODUCTION
As computers and telecommunications explode into the next century, prosecutors
and agents have begun to confront new kinds of problems. These Guidelines
illustrate some of the ways in which searching a computer is different
from searching a desk, a file cabinet, or an automobile. For example, when
prosecutors must interpret Rule 41 (which requires that the government
obtain a search warrant in the district where the property to be searched
is "located"), applying it to searches of physical items is usually uncomplicated.
But when they must try to "locate" electronic data, the discussion can
quickly become more metaphysical than physical.
Even so, it is important to remember throughout the process that as dazzling
and confounding as these new-age searches and seizures may be, they are
in many essential ways just like all other searches. The cause must be
just as probable; the description of items, just as particular. The standard
investigative techniques that work in other cases (like finding witnesses
and informants) are just as valuable in computer cases. The evidence that
seals a case may not be on the hardware or software, but in an old-fashioned
form: phone bills, notes in the margins of manuals, or letters in a drawer.
The sections that follow are an integration of many legal sources, practical
experiences, and philosophical points of view. We have often had to extrapolate
from existing law or policies to try to strike old balances in new areas.
We have done our best to anticipate the questions ahead from the data available
today. Even so, we recognize that rapid advances in computer and telecom-munications
technologies may require that we revisit these Guidelines, perhaps in the
near future. In the meantime, as law struggles to catch up to technology,
it is important to remember that computer cases are just like all others
in one respect at least: under all the "facts and circumstances," there
is no substitute for reasonable judgment.
Go to . . .
Table
of Contents - Main Federal Guidelines
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