Unlocking privacy: the enigma of files in digital device searches under the Fourth Amendment.

The Fourth Amendment was created to protect individuals from unreasonable searches and seizures by government authorities. The Fourth Amendment requires that warrants be issued based on probable cause. There are various exceptions to the warrant requirement, including the Private Search Doctrine. The Private Search Doctrine allows law enforcement to search without obtaining a warrant when an individual, not acting as a government agent, has already uncovered and exposed evidence or information. The information from the private parties’ search is admissible and allows for subsequent warrantless searches of the same area on the device without violating the Fourth Amendment’s warrant requirement. 

In recent years, various Circuit Courts have split over the scope of a subsequent search by government authorities after a private party has uncovered evidence of a crime. The Sixth and Eleventh Circuits have adopted the file approach, which states that the subsequent search must be within the scope of the original search. Alternatively, the Fifth and Seventh Circuits have applied the container approach. The container approach allows the subsequent search to go beyond the scope of the original search. 

Two prongs must first be met for the Private Search Doctrine to be constitutional. Under this doctrine, the first prong is met when a private individual independently and lawfully discovers evidence without government help. The Fourth Amendment regulates government actions, not private ones. Thus, an individual acting privately without the assistance of a government agent does not violate the Fourth Amendment, meaning such an individual may carry out a search without implicating the Fourth Amendment. The second prong of the doctrine requires that the government must be virtually certain that evidence of a crime will be found during the search. Lower courts differ on what exactly meets the standard of “virtual certainty.”

The Private Search Doctrine is particularly interesting to criminal law practitioners because it directly affects how evidence obtained from digital devices can be used in court. Since modern devices often store vast amounts of sensitive, personal information, the doctrine’s application has significant implications for privacy rights and the admissibility of evidence. The ongoing circuit split between the "file" and "container" approaches presents an urgent need for clarity. Depending on the jurisdiction, law enforcement might have greater latitude in searching the entire contents of a device or be limited to only the specific files initially accessed by a private party.

The Supreme Court has defined a “container” as “any object capable of holding another object.” Courts employing “the container approach” establish comparisons between electronic devices, contending that these are essentially digital “containers,” and the traditional sealed containers that form the core of historical private search legal principles.  This rule is rationalized because the subsequent government search is more “thorough”; hence, a government search is not deemed to exceed the scope of the preceding private searches under the Fourth Amendment solely because it involves a more thorough examination than the original search.

Some circuit courts adopt the “file approach.”  This approach advocates for new private search guidelines that better address the distinctive traits of digital devices. The concept of the file approach stems from the fundamental distinction between computers and electronic devices, as opposed to traditional writings or containers of writings.   The file approach suggests that these fundamental distinctions give rise to unique challenges not addressed by the container approach. It advocates for “unique procedures and detailed justifications” to confront issues overlooked by traditional rules. While the file approach was created independently in various jurisdictions, the underlying understanding is that “government searches of electronic devices should be narrowly tailored.”  

Under the file approach, if law enforcement seeks to go beyond the original scope of the search, then they must obtain a warrant. This method aligns with the warrant clause laid out in the Fourth Amendment. The Supreme Court has always “recognized the warrant preference rule in Fourth Amendment cases.” Even searches allowed under exceptions to the warrant preference rule must adhere to their designated scope and cannot justify expansive, intrusive, warrantless searches. However, one of the most frequent criticisms of the container approach is it fails to confine itself to its appropriate scope, as it does not restrict subsequent government searches to the scope of the private search. 

The file approach is the appropriate standard as it aligns with the principles of the Riley balancing test. In American jurisprudence, adhering to judicial precedent when determining a case or establishing a standard is essential. When determining the appropriate standard to use when applying the private search doctrine, Riley v. California is instructive. 

In Riley, the Supreme Court laid out a balancing test that considers the extent of privacy intrusion caused by the search and the government’s justifications for searching without a warrant. The Court highlighted that the scale tips in favor of privacy rights when a digital device is involved. Riley’s reasoning and the foundational principles in the Fourth Amendment suggest that digital devices should be accorded heightened privacy protections when they are subject to a warrantless search.  

The container approach neglects the vast amount of information on digital devices. This approach also does not consider the extensive storage capacity and the level of intrusion that the container approach allows. The file approach addresses the limitations of the container approach by acknowledging and adapting to the distinctive features of modern electronic devices.  

The Supreme Court should adopt the file approach when analyzing the permissible scope of searches under the Private Search Doctrine. This approach emphasizes the protection of an individual’s Fourth Amendment rights. Thus, by adopting this approach, the Court will foster legal clarity and ensure consistent protection of an individual’s Fourth Amendment rights.   Accordingly, even if the government has authorization to search for one file on a device, it is imperative to acknowledge and uphold the suspect’s constitutionally protected privacy interest in other files. This prevents the government from expanding without authorization, striking a delicate balance between law enforcement needs and individual rights.