Search Warrants: Plain View is less clear in a digital context

A recent article in LegalTech news highlights the difficulty in applying the “plain-view” doctrine within the digital realm.  The article discusses web service provider Dream Host’s issues within the scope of search warrants related to data.  While the D.C. Circuit Court ruled that DreamHost had to comply with the search warrant, the arguments that DreamHost raised reflect some uncertainty within the courts, according to the article.  LegalTech’s article points out that while the U.S. Court of Appeals for the Second Circuit ruled that applying the traditional plain view doctrine in a digital world may violate the Fourth Amendment, the Fourth Circuit held that plain view applies irrespective of whether the subject matter is digital or physical.

Consequently, it seems that sooner or later it is going to be up to the U.S. Supreme Court to determine if the nature of digital data requires a review of the particularity component of search warrants.  Additionally, the article indicated that DreamHost raised the specter of personally identifiable information (PII) and how that would be protected in a digital search context.  As a web services provider DreamHost presumably had significant PII on its users, and knowing how the government would safeguard PII becomes a valid concern.  While the issues are somewhat analogous to physical searches, the storing of PII within a specific agency or entity increases the attractiveness of such a repository.  With the possibility of state-actors, the possibility of data exfiltration is the reality in which we live.

At any rate, this issue is likely to present itself in state and federal courts as the fourth amendment protections are applied to a digital world where lifetimes of information on millions of people could be stored on a tiny physical device with a virtual footprint that would exceed the capacity of any person’s home.  What did the framer’s have in mind and how should the court rule with respect to a binary world full of data?  Only time will tell, however, it seems unlikely the framers would have favored search warrants that covered the entire country, or even an entire state, and therein lies the issue.  Particularity becomes quite vexing when dealing with petabytes of data.