Taking the Fourth Amendment to Bits:
The Department of Justice Guidelines for Computer Searches and Seizures


Citation form conforms to "A Uniform System of Citation (The Bluebook)" except that text normally set in large and small capitals is indicated herein by bolding.

1. Message left for users of the "Ripco BBS [Bulletin Board System]" following the seizure of the operator's equipment. See http://www.eff.org/pub/Legal/Cases/SJG /ripco_ case_closed.article.

2. Bruce Sterling, The Hacker Crackdown 130 - 32 (1992), available at http://www-swiss.ai.mit.edu/~bal/sterling/contents.html. Attempts by the author to determine if Izenberg was able to secure the return of his property after Sterling's book was published in 1992 have so far been unsuccessful.

3. Defense Bar Hits Fla. Raids on Lawyers, Nat'l L.J., Oct. 3, 1994, at A10.

4. Press release available at at http://www.eff.org/pub/Legal/Cases/Cincinnati_ BBSers_v_Hamilton_County/cinci_bbs_lawsuit.announce.

5. U.S. Const. amend. IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

6. Federal Guidelines for Searching and Seizing Computers (July 1994, U.S. Department of Justice, Criminal Division, Office of Professional Development and Training). Obtained by the Electronic Privacy Information Center pursuant to request under the Freedom of Information Act. Available at ftp://ftp.cpsr.org/cpsr/privacy/ epic/fed_computer_seizure_guidelines.txt, also reprinted in 56 Crim. L. Rep. (BNA) 2023 (Dec. 21, 1994). Hereinafter cited as DOJ Guidelines, or simply as "the Guidelines," depending on context.

7. Participating agencies include 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." Id., Preface, at i.

8. Reproducing what has perhaps become the single most redundant footnote in the entire body of scholarship surrounding computers and the law (see, e.g., Jeremy Stone Weber, Note: Defining Cyberlibel: A First Amendment Limit for Libel Suits Against Individuals Arising from Computer Bulletin Board Speech, 46 Case W. Res. L. Rev. 235, 235 n.1 (1995); Todd H. Flaming, The National Stolen Property Act and Computer Files: A New Form of Property, a New Form of Theft, 1993 U Chi. L. Sch. Roundtable 255, 282 n.132; M. Ethan Katsh, Digital Lawyers: Orienting the Legal Profession to Cyberspace, 55 U. Pitt. L. Rev. 1141, 1152, n.27 (1994); Dan L. Burk, Patents in Cyberspace: Territoriality and Infringement on Global Computer Networks, 68 Tul. L. Rev. 1, 3 n.7 (1993); Michael L. Taviss, Editorial Comment: Dueling Forums: The Public Forum Doctrine's Failure to Protect the Electronic Forum, 60 U. Cin. L. Rev. 757, 761 n.22 (1992); Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 Yale L.J. 1639, 1640 n.3 (1995); etc.), it should be noted that the term "cyberspace" describes generally the logical space which may be addressed by means of a computer, and is in some ways congruent with the concept of "data space" (see infra note 31 and accompanying text). The term was popularized by author William Gibson in his so - called "cyberpunk" novel Neuromancer (1984): "Cyberspace. A consensual hallucination experienced daily by billions of legitimate operators, in every nation .... A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light arranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding ...."

9. Sterling, supra note 2, at 194.

10. "Computers in the future may weigh no more than 1.5 tons." Windows Magazine, Feb. 1996, at 370 (quoting a 1949 issue of Popular Mechanics).

11. See, e.g., Brian Nadel & John Morris, Notebook PCs: Mobile Triton and Pentium/133 Elevate Notebook Computing, PC Magazine, Apr. 9, 1996, at 39 (reviewing two new models of computers that "sell for about $5000 fully loaded, weigh about 7 pounds each, and are top - flight performers.").

12. "You may not think of them as computers, but they are: calculators, your car's electronic ignition, the timer in the microwave, and the unfathomable programmer in your VCR." Ron White, How Computers Work 3 (1993).

13. Pro Series Payroll with WebPay: Manage Your Payroll Online, Windows Magazine, Apr. 1996, at 70.

14. Theresa W. Carey, Quicken Versus Money, PC World, Apr. 1996, at 163 ("Personal finance software has found its killer application: online banking, which provides interactive access to your bank, credit cards, and other financial concerns. All you need is your PC, a modem, and one of two programs with the most online links: Intuit's Quicken, the market leader, and Microsoft Money.").

15. See Howard Rheingold, The Virtual Community: Homesteading on the Electronic Frontier (1993).

16. As an aside, it is not clear that the two types of crime can be so easily distinguished. Many "computer crimes"--theft of copyrighted software, distribution of pornography, harassment or defamation in public forums, etc.--have readily recognized "analog" counterparts. In some cases, however, use of a computer to commit these crimes triggers application of particular statutes; often, these statutes mandate penalties more severe than would be the case "in real life." Arguably, the sentencing provisions which impose more severe penalties upon criminals using computers are the product of ignorance or fear rather than reason; see, e.g., Computer Professionals for Social Responsibility, Comments on Proposed Changes to Computer Crime Sentencing Guidelines (Mar. 15, 1993), available online at http://snyside.sunnyside.com/cpsr /computer_crime/cpsr_comments_1030_sentencing_txt, and Society for Electronic Access, Comment to the United States Sentencing Commission Regarding Proposed Amendments to Provisions Governing Computer Fraud and Abuse (Mar. 13, 1993) available online at http://snyside.sunnyside.com/cpsr /computer_crime/sea_comments_1030_guidelines.txt.

17. The word "data" is, of course, plural (the singular form is "datum"). Nevertheless, common usage has come to allow its use with a singular verb to denote "a collection of facts; information." Random House Webster's Dictionary 165 (1993).

18. White, supra note 12, at 3.

19. David Icove et al., Computer Crime: A Crimefighter's Handbook 19 (1995) ("Computer hardware is an attractive target for thieves because components can be resold. In our computerized society, there is little difficulty selling hot hardware--everyone is looking for a bargain.").

20. Id. at 18.

21. White, supra note 12, at 3.

22. Icove, et al., supra note 19, at 45, defines a computer virus as "a program which modifies other programs so they replicate the virus." Viruses, Trojan horses, and worms are functionally distinct in ways that are beyond the scope of this article, but similar in that they "are all attacks on the integrity of the data that is stored in systems and communicated across networks." Id.

23. White, supra note 12, at 28.

24. See generally Thomas Plum, Learning to Program in C § 2–1 (1983).

25. The acronym ASCII stands for "American Standard Code for Information Interchange." See Nicholas Negroponte, Being Digital 185 (1995).

26. "If you were to fax this page, the scanner in the facsimile machine would generate a fine line-by-line map with 1s and 0s representing the black and white of ink and no ink." Id. at 184.

27. "A CD [compact disc] is 'audio fax.' " Id. at 185.

28. Id. at 14-17.

29. Peter D. Junger, Computers and the Law 2 (1994, unpublished manuscript on file with the author). This portion of Prof. Junger's discussion is also available online at gopher://all.net:70/0/Risks/Post-1990/Volume-14/risks-14.65.

30. A readily available steganographic program called "HideSeek," available at http://www.netlink.co.uk/users/hassop/pgp/hdsk41b.zip, allows the user to embed a text file into a graphic file. According to documentation which accompanies the program, the process is accomplished by altering the "least significant bit" (LSB) corresponding with each "picture element," or pixel, of the graphic file in such a manner as to contain the hidden text file. The result is that the file displays normally when interpreted by software designed to interpret the graphic file, but reveals its hidden text when interpreted by the "HideSeek" program.

31. Randolph S. Sergent, A Fourth Amendment Model for Computer Networks and Data Privacy, 81 Va. L. Rev. 1181, 1181 n.1 (1995): " ‘Data space' is an abstract concept analogous to physical space. The user of a computer system does not have a contiguous physical area in which to store her files. Instead, the computer provides the user with a logical storage area, which may utilize one or more underlying physical media."

32. See White, supra note 12, at 152–53.

33. M. Ethan Katsch, Rights, Camera, Action: Cyberspatial Settings and the First Amendment, 104 Yale L.J. 1681, 1693 & n.37 (1995).

34. Paul Andrews, Could This Be the End of the PC As We Know It?, Seattle Times, Mar. 31, 1996, C1, C3 (quoting Scott McNealy of Sun Microsystems).

35. See infra notes 100 - 01 and accompanying text.

36. See infra note 102 and accompanying text.

37. DOJ Guidelines, supra note 6, at 113.

38. Id. at 1.

39. See supra note 7.

40. See DOJ Guidelines, supra note 6, Preface, at i:

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.

41. 267 U.S. 498 (1925). In Steele the Court upheld a search of the defendant's garage for bootleg liquor. DOJ Guidelines, supra note 6, at 96.

42. DOJ Guidelines, supra note 6, Preface, at i.

43. United States v. Tamura, 694 F.2d 591, 594 (9th Cir. 1982).

44. Id.

45. Id. at 595.

46. Id.

47. Id.

48. Id. at 597 (citing United States v. Daniels, 549 F.2d 665, 668 (9th Cir. 1977)).

49. DOJ Guidelines, supra note 6, at 58 - 59.

50. 756 F. Supp. 1385 (D. Nev. 1991)

51. Id. at 1387.

52. See infra notes 73 - 77 and accompanying text.

53. DOJ Guidelines, supra note 6, at 11.

54. 816 F. Supp. 432 (W.D. Tex. 1993), aff'd, 36 F.3d 457 (5th Cir. 1994).

55. See supra note 1 and accompanying text.

56. See supra note 2.

57. Sterling, supra note 2, at 133. The case is characterized in the DOJ Guidelines as involving attempts "to decrypt passwords which would allow [unidentified "hackers"] into computer systems belonging to the Department of Defense." DOJ Guidelines, supra note 6, at 80. However, no evidence presented in either the Guidelines or the court opinions appears to support this claim.

58. DOJ Guidelines, supra note 6, at 81.

59. Although the district court opinion offered the conclusion that "[Secret Service Agent] Foley's affidavit, executed on February 28, 1990, was sufficient under the law for the issuance of a search warrant by the United States Magistrate Judge," 816 F. Supp. at 437, the statement must be taken as dicta in light of the fact that only statutory claims were at issue in the case ("[a]ll other issues [aside from the statutory claims] have been withdrawn by agreement of [the] parties," id. at 434).

60. 42 U.S.C. § 2000aa (1994).

61. "Stored Wire and Electronic Communications and Transactional Records Access;" see 816 F. Supp. at 434. The Secret Service was held not to have violated that portion of the ECPA codified within 18 U.S.C. §§ 2510 - 2520, "Wire and Electronic Communications Interception and Interception of Oral Communication." Id.

62. DOJ Guidelines, supra note 6, Preface, at i.

63. Id.

64. See supra note 7.

65. DOJ Guidelines, supra note 6, at 9 - 24.

66. Id. at 25 - 33.

67. Id. at 35 - 70.

68. Id. at 71 - 89.

69. Id. at 91 - 102.

70. Id. at 103 - 11.

71. Id. at 113 - 23.

72. Id. at 9 (quoting United States v. Leon, 468 U.S. 897, 914 (1984)).

73. Id. (quoting United States v. David, 756 F. Supp. 1385, 1392 (D. Nev. 1991)).

74. Id.

75. See supra note 31 and accompanying text.

76. See supra notes 50 - 53 and accompanying text.

77. DOJ Guidelines, supra note 6 at 11.

78. Id. at 14 - 23.

79. Id. at 25.

80. Id.

81. Id. at 26.

82. Id. at 29.

83. Id. at 35.

84. Id. (citing Fed. R. Crim. P. 41(h)).

85. Id. (citing United States v. Villegas, 899 F.2d 1324, 1334 - 35 (2d Cir.), cert. denied, 498 U.S. 991 (1990)).

86. Id. at 40 - 43.

87. Id. at 63 - 70.

88. Id. at 36.

89. Id. at 36 - 37.

90. Id. at 37 - 40.

91. DOJ Guidelines, supra note 6, at 83 - 84.

92. 42 M.J. 568 (A.F. Ct. Crim. App. 1995).

93. Id. at 572.

94. Id. at 575 (citing Illinois v. Gates, 462 U.S. 13 (1983)).

95. Id. (citing Rakas v. Illinois, 439 U.S. 128 (1978)).

96. Id. (citing Smith v. Maryland, 442 U.S. 735 (1979)). See also Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

97. Id. at 577.

98. Id. at 578 (citing United States v. Leon, 468 U.S. 897 (1984)).

99. Id. at 579 (citing United States v. Modesto, 39 M.J. 1055 (A.C.M.R. 1994) (emphasis supplied)).

100. Without a reasonable expectation of privacy there is no "search" for purposes of the Fourth Amendment, see, e.g., California v. Greenwood, 486 U.S. 35 (1988) (police not held to Fourth Amendment requirements in searching the suspect's garbage, because there is no reasonable expectation of privacy in garbage placed at curbside); Smith v. Maryland, 442 U.S. 735 (1979) (use of a "pen register" to record the phone numbers dialed by a suspect not subject to Fourth Amendment analysis, because the suspect voluntarily reveals the numbers to the telephone company and so relinquishes any expectation of privacy).

101. Sergent, supra note 31, at 1189 - 90.

102. Id. at 1196. Sergent notes that "[i]n cases where the courts recognized a ‘search' for information, the owner of the information has a possessory interest in the media on which the information was stored. See, e.g.,... United States v. Horowitz, 806 F.2d 1222,1225 (4th Cir. 1986) (interest in material on computer tapes does not create an expectation of privacy when defendant has no access to or control over those tapes)." Id., n.84. Cf. Rakas v. Illinois, 439 U.S. 128 (1978) (defendants lacked standing to challenge the search of an automobile in which they were passengers, but which they neither owned nor leased).

103. See supra notes 31 - 34 and accompanying text.

104. U.S. Const. amend. IV.

105. United States v. Maxwell, 42 M.J. 568, 579 (A.F. Ct. Crim. App. 1995).

106. DOJ Guidelines, supra note 6, at 53 (citing In Re Grand Jury Subpoenas, 926 F.2d 847, 856–57 (9th Cir. 1991).

107. 848 F.2d 1374 (6th Cir. 1988), cert. denied 488 U.S. 1005 (1989).

108. DOJ Guidelines, supra note 6, at 57. The Guidelines also cite United States v. Wuagneux, 683 F.2d 1343 (11th Cir. 1982), cert. denied, 464 U.S. 814 (1983), and Marvin v. United States, 732 F.2d 669 (8th Cir. 1984) as standing for essentially the same rule. However, the Guidelines also mention that there is at least some authority to the contrary. DOJ Guidelines, supra note 6, at 98 (citing In Re Subpoena Duces Tecum Dated November 15, 1993, 846 F. Supp. 1 (S.D.N.Y. 1994)).

109. DOJ Guidelines, supra note 6, at 62 - 63 ("there may be times when agents will need to seize every component in the computer system and later have a laboratory computer specialist determine whether or not each piece can be returned .... Peripherals such as printers and special input and display devices may be necessary to operate and display certain software application .... Similarly, when agents search and seize a computer system, they should ask for authority to seize any documentation that explains the hardware and software being seized").

110. See supra notes 97 - 98 and accompanying text.

111. In contrast, one widely - cited authority states that "the 'place to be searched' portion of the particularity requirement has no special impact on computer searches." John Gales Sauls, Raiding the Computer Room: Fourth Amendment Considerations (Part I), 55 FBI Law Enf. Bull. 25, 29, May 1986, reprinted in Icove, et al. supra note 19, app. B, at 376.

112. DOJ Guidelines, supra note 6, at 92 (citation omitted).

113. Id. (citing Fed. R. Crim. P. 41(a)).

114. Id. at 93.

115. Id. at 96 (citing Steele v. United States, 267 U.S. 498 (1925)).

116. Id. at 100 (citing 18 U.S.C. § 3109 (1994)).

117. Id. (citing United States v. Bustamante-Gamez, 488 F.2d 4, 11 - 12 (9th Cir. 1973), cert. denied, 416 U.S. 970 (1974)).

118. Id. at 101 - 02.

119. See, e.g., Mitchell Kapor & Mike Godwin, Civil Liberties Implications of Computer Searches and Seizures: Some Proposed Guidelines for Magistrates Who Issue Search Warrants (n.d.), available online at http://www.eff.org/pub/Legal/ search_and_seizure_guidelines.eff.

120. DOJ Guidelines, supra note 6, at 101 n.12.

121. Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 75 (1994).

122. 975 F.2d 927 (1st Cir. 1992).

123. Laurence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier (1991). Prof. Tribe's remarks -- the keynote address at the First Conference on Computers, Freedom and Privacy -- are available online at http://snyside.sunnyside.com/cpsr/conferences/cfp91/papers/tribe.

124. Sergent, supra note 31, at 1193 (quoting John M. Junker, The Structure of the Fourth Amendment: The Scope of the Protection, 79 J. Crim. L. & Criminology 1105, 1107 (1989)).

125. Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting), quoted in Winick, supra note 121, at 75.

126. See, e.g., Nadel & Morris, supra note 11, at 40. For purposes of comparison, a digital copy of this article requires less than 175,000 bytes of storage space.

127. See supra note 4 and accompanying text.

128. Charles Platt, "Americans Are Not As Free As We Think We Are," Wired, Apr. 1996, at 82, 88 (quotation marks in the title appear in the original). Also available online at http://www.hotwired.com/wired/4.04/es.states.html.

129. Jason S. Marks, Mission Impossible? Rescuing the Fourth Amendment From the War on Drugs, Crim. Just., Spring 1996 at 16, 17. According to Marks, general warrants (which granted the bearer a legal right to perform discretionary searches and seizures) were actually eliminated in the early 17th century, but were soon replaced by writs of assistance (similar to general warrants, but "more insufferable" because they were valid for a much longer period of time and were not restricted to a single investigatory objective).

130. 116 U.S. 616 (1886).

131. Id. at 625.

132. Marron v. United States, 275 U.S. 192, 196 (1927).

133. 891 P.2d 600 (Okla. Ct. App. 1994).

134. Id. at 604 (quoting Moore v. State, 788 P.2d 387, 395 - 96 (Okla. Crim. 1990)).

135. Id. (citations omitted, emphasis supplied).

136. Marks, supra note 129, at 17.

137. Id. at 16. Marks' concerns arise from the Supreme Court's decision in Vernonia School District 47J v. Acton, 115 S. Ct. 2386 (1995), in which mandatory urinalysis for high school athletes (without probable cause) was held not to violate the Fourth Amendment particularity requirement.

138. A thorough discussion of the legal issues surrounding data encryption may be found in A. Michael Froomkin, The Metaphor Is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. Pa. L. Rev. 709 (1995), also available online at http://swissnet.ai.mit.edu/6095/articles/froomkin-metaphor/text.html.

139. Icove, et al., supra note 19, at 417.

140. John Shore, The Sachertorte Algorithm and Other Antidotes to Computer Anxiety 131 (1986).

141. RSA Laboratories, Answers to Frequently Asked Questions About Today's Cryptography 96 (1995). This document is available online (in various computer readable formats) at http://www.rsa.com/rsalabs/faq/.

142. Id.

143. Paul R. Katz & Aron Schwartz, Electronic Documents and Digital Signaturing: Changing the Way Business Is Conducted and Contracts Are Formed, ABA Sec. Intell. Prop. L. Newsl., Winter 1996, at 3 - 4. Endnote 2 (id. at 33 - 34) includes a thorough description of the theory behind public key cryptography in general, and the most widely used public key algorithm (the "RSA algorithm") in particular.

144. Id.

145. Froomkin, supra note 138, at 716 - 17. In a footnote, Prof. Froomkin notes that "[w]ithout access to relevant classified information, it is impossible to know whether the NSA or other government agencies might have discovered a means of breaking even the most sophisticated publicly available ciphers. Considering the intense secrecy that would surround such a cryptanalytic capability, however, one can safely act as if it does not exist. Even if the government had the capability to break supposedly unbreakable cryptography, such cryptanalysis would be a vital national secret -- so vital that the government would never use that capability in a manner that would risk revealing its existence before the middle of the next large war." Id. at 717 n.21.

146. Prof. Froomkin has noted that the use of the word "escrow" in this context is not entirely correct, in that the information would be stored and used "primarily for the benefit of the government rather than the owner of the key." Id. at 715.

147. According to Prof. Froomkin, a voluntary system would involve "a simple bargain: In exchange for providing the private sector with an encryption technology certified as unbreakable for years to come by the NSA, the government plans to keep a copy of the keys ...." Id. at 716 (footnotes omitted).

148. "[T]he government, through the National Institute for Standards and Technology (NIST), has sought to insure that only an encryption algorithm, for which it has access to the master key, will become the standard in electronic commerce." Katz & Schwartz, supra note 143, at 30 (emphasis supplied). Prof. Froomkin has concluded that "although mandatory key escrow would infringe personal privacy, reduce associational freedoms, potentially chill speech, constitute a potentially unreasonable search, and might even require a form of self - incrimination, the constitutionality of mandatory key escrow legislation remains a distressingly close question under existing doctrines." Froomkin, supra note 138, at 717 - 718.

149. DOJ Guidelines, supra note 6, at 54.

150. Id. The text then goes on to summarize the particular issues which may arise from the discovery of encrypted data in a search conducted pursuant to consent, rather than a warrant. Much of the discussion draws upon the lessons of the David case, which is treated more fully supra notes 50 - 53 and accompanying text.

151. DOJ Guidelines, supra note 6, at 55.

152. Id.

153. Id.

154. 487 U.S. 201 (1988). The majority opinion accepted, at least in principle, that there may be a Fifth Amendment distinction between " 'be[ing] forced to surrender a key to a strong box containing incriminating documents' " and " 'be[ing] compelled to reveal the combination to [petitioner's] wall safe,' " Id. at 210 n.9 (quoting Stevens, J., dissenting, id. at 219, alterations in original); the majority simply differed from the dissent as to the relevancy of the distinction to the case at hand. Were this question to be conclusively settled, the matter of whether the password needed to decode an encrypted file more closely resembles a "key" or a "combination" would become significant.

155. 465 U.S. 605 (1984). There is a spirited disagreement between the concurring opinions of Justice O'Connor ("the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind," id. at 618) and Justice Marshall ("I do not view the Court's opinion in this case as having reconsidered whether the Fifth Amendment provides protection for the contents of 'private papers of any kind.' This case presented nothing remotely close to the question that Justice O'Connor eagerly poses and answers," id. at 619).

156. Two existing statutory provisions -- the Electronic Communications Privacy Act of 1986, Pub. L. No. 99 - 508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C. (1994)), and the Privacy Protection Act of 1980, 42 U.S.C. § 2000(aa) (1994) -- have been held to impose important limitations upon law enforcement officials conducting searches or seizures of computers and computer data. The Guidelines discuss each of these statutes briefly. DOJ Guidelines, supra note 6, at 72 - 89. For an example of how these provisions have been applied in practice, see Steve Jackson Games v. United States Secret Service, 816 F. Supp. 432, 439 -43 (W.D. Texas 1993), aff'd 36 F.3d 457 (5th Cir. 1994), discussed supra notes 54 - 61 and accompanying text.

157. DOJ Guidelines, supra note 6, at 62 - 63.

158. Id. at 56 - 59.

159. Fed. R. Crim. P. 41(b), "Property or Persons Which May Be Seized With a Warrant."

160. Kapor & Godwin, supra note 119.

161. Id. (alteration in original, source of quotation unidentified).

162. See supra notes 116 - 19 and accompanying text.

163. Sterling, supra note 2, at 152.

164. DOJ Guidelines, supra note 6, at 92 - 97.

165. Fed. R. Crim. P. 41(a).

166. DOJ Guidelines, supra note 6, at 105 - 11. See also Fed. R. Crim. P. 41(e), "Motion for Return of Property."

167. DOJ Guidelines, supra note 6, at 105.

168. 816 F. Supp. at 437.

169. See, e.g., supra note 2 and accompanying text.

170. DOJ Guidelines, supra note 6, at 106.

171. Id. at 108 - 09.

172. See, e.g., RSA Laboratories, supra note 141, at 19; Katz & Schwartz, supra note 143, at 3 - 4.

173. Peter G. Neumann, Computer Related Risks 200 (1995).

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