Mark Taticchi · February 2010
78 GEO. WASH. L. REV. 942 (2010)
Snap! The agent’s camera takes a picture of your diary entries from November third and fourth. Snap! It captures your bank statement from last September. Snap! A picture of your day planner for April thirtieth. Meanwhile, a technician is busy hooking up her equipment to your computer. A few hours later, around the time the agent is finished photographing the contents of your diary and other papers, the equipment beeps: it has finished copying your hard drive. A few minutes later, the agents leave, essentially taking your entire life with them when they do. And they can keep the copies they have made, quite possibly forever, and nothing in the Fourth Amendment will help you get them back.
The Fourth Amendment protects individuals against unreasonable searches and seizures. A search is a governmental invasion of a reasonable expectation of privacy, such as an FBI agent reading a suspect’s diary or examining her computer files. A seizure, however, meaningfully interferes with someone’s possessory interest in her property rather than her privacy. Courts generally interpret possessory interest to mean physical possession, even when the property allegedly seized is intangible, like information. Many courts have therefore held that copying information is not a seizure because the owner retains the copied information.
This approach undermines the individual’s ability to limit governmental access to her information. First, creating perfect duplicates via processes like copying computer files or taking photographs is much faster than summarizing would be. It thus puts vastly greater amounts of an individual’s information into play and enormously increases the opportunity for the police to unearth potential evidence of a crime wholly unrelated to their original purpose for making the copy. Second, and more generally, there is just something more invidious about a perfect duplicate than—for example—a handwritten summary. It is one thing for a person to know that an FBI agent has read her diary, but it is another matter entirely for her to live with the knowledge that the same FBI agent has a line-for-line copy of the diary. The agent can reread the diary at will, show it to others, or mislay it so that countless strangers could also invade the author’s innermost thoughts. And she must live with the knowledge that she is powerless to get it back.
To avoid those results, this Note proposes that the Supreme Court broaden its definition of the term “possessory interest” to include interference not only with physical possession but also with the right to exclusive possession of one’s information. In other words, the Court should hold that creating a perfect duplicate of information seizes that information because the copying process meaningfully interferes with the data-owner’s right to exclude the government from her information.
This Note does not advocate banning police from creating and using perfect duplicates; such copies are valid and invaluable tools and have their proper place in the orderly administration of justice. Rather, this Note merely proposes applying the normal Fourth Amendment requirements for seizing evidence to the creation of a perfect copy of information.
Part I provides important background on the Fourth Amendment and the right to exclude. Part II explains the contours of the proposal and defends it against possible critiques. Part III illustrates the proposed rule by applying it to various real and hypothetical scenarios.
