Searches and Seizures in a Digital World

Introduction 

At the time of the ratification of the Fourth Amendment, no one knew that a time would come when people will be storing and using data and information in digital form. Computers, among other digital devices today, enable people to live in a virtual space literally. A digital device may store an individual’s operations, various items of entertainment, crucial data and information, programs, and money, among other things. Search and seizure of computers and other digital devices is, therefore, a common phenomenon in the modern world to help with various criminal investigations. The subject of search and seizure of digital devices is, however, a complex one given the nature of digital evidence or data. Also there are various implications when it comes to digital data. There are no actual specifications on search and seizure of digital data, and in some instances, there are no clear guidelines on when and how digital data or evidence should be searched or seized ( Kerr, 2005) . Even more disturbing, the police often search and seize digital devices without any explanations, warrants, or consent of the owner. 

Problems of Digital Evidence for Law Enforcement 

Law enforcement faces lots of challenges when dealing with digital evidence. For instance, an individual has the right to appeal if they feel that their property (digital devices) were searched or seized unlawfully and unreasonably. Also, because it is not easy to tie digital data to an individual, law enforcement may have quite a hard time using digital evidence in a case. The police can conduct search or seizure of digital devices under specific circumstances. These include if they have a search warrant, consent from the owner, if the computer is getting across a border and if it is a situation of emergency such as death ( Kerr, 2005) . There are also other situations where the police may be allowed to search or seize digital devices as evidence. For example, the boss of a company may permit the police to search or seize all computers used by employees. Otherwise, the police or the prosecution may not be able to use illegally obtained digital information, data, or file against an individual in the court. For law enforcement to present digital data or evidence in a court of law, it has to be relevant to the case, authentic, and its use should not violate the constitution. 

One major problem regarding digital evidence is the fact that digital data or information can be altered or changed endlessly, thus reducing its authenticity. Opening a folder alone alters the contents of that folder as the computer will record the latest moment the files were accessed. The defense may sometimes appeal that the evidence presented to the court has been altered, and it may be challenging to determine which side of the case provides the most authentic evidence. The defense may have what seems to be the original copy of the evidence, which may have different features. If it is not possible to determine which evidence is most authentic, it may be quite difficult to make a case against the defendant. 

Tying the suspect to a given Set of Digital Data 

Digital data is more complex in that it may not be possible to determine the bearer of the data or their actual meaning. Prosecutors, at other times, cannot attribute to digital evidence to an individual even if that evidence was obtained from the individual’s computer or other digital devices. Someone else may have put the file or data on that computer without the individual’s knowledge. The computer, for instance, may have been hacked and the data planted in it. The data in the computer may also bear a different meaning from the one purported by the prosecutors. It is possible that the digital evidence, however crucial to the case, may not belong to the suspect or may have been stored in the suspect’s computer by a different party. Such complexities make it quite difficult for the prosecutors to tie a suspected individual to a set of digital data. 

The only way to effectively tie a suspect to a set of digital evidence is by following the guidelines for searching and seizing digital evidence and admissibility of digital evidence in court ( Kerr, 2005) . The evidence must be relevant to the case, authentic, and must not violate the constitution. Proper documentation of the seizure, transportation, and storage of the digital devices and evidence must be kept and provided in the court. This way, the authenticity of the evidence is guaranteed, and the prosecutor is able to make a strong case and tie the suspect to the evidence. 

Conclusion 

The topic of digital evidence is a controversial one and one that needs to be addressed. Digital evidence may carry sufficient information to help put a case to rest. However, problems that law enforcement and prosecutors face while using digital evidence make it quite unreliable as a source of evidence in modern times. It may not be possible to tie evidence to a suspect, digital evidence is easily altered, and unlawfully obtained, irrelevant or unauthentic digital evidence, is inadmissible in court. 

References 

Kerr, O. S. (2005). Searches and seizures in a digital world. Harv. L. Rev. , 119 , 531.