US Ruling OKs Seizure of Computer Containing Privileged Materials

A recent US ruling allows prosecutors to review the contents, which includes privileged communications, of a computer seized in connection with online prescription drug sales. The seizure raises unresolved legal questions on search warrants in the Internet age.

See: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1188378153101

Excerpts:

"When federal investigators July 25 seized the computer of a Cobb County, Ga., man indicted in connection with prescription drug sales on the Internet, they used a search warrant to gain access to the computer's files.

The seized computer on which defendant Christopher Stoufflet intermingled his business and his personal affairs contained -- in addition to business records from his defunct online pharmacy that were already in federal prosecutors' hands -- privileged correspondence with his attorneys.
Stoufflet's lawyer, Don Samuel of Atlanta's Garland, Samuel & Loeb, quickly asked a federal magistrate judge to bar prosecutors from mining those legal communications, as well as other personal correspondence, calendars, journals or photos unrelated to Stoufflet's criminal case.

But U.S. District Magistrate Judge Alan J. Baverman rejected the defense motion.
Prosecutors insist they will review everything on the computer -- but have assured the magistrate judge they will use a team of lawyers separate from those prosecuting Stoufflet to avoid any violation of attorney-client privilege.

Samuel said the computer seizure raises broader, still unresolved legal questions about the expanding nature of search warrants in the Internet age.
"The problem with seizing computers is the misperception that it is no different than any other container, like a briefcase," Samuel said.

But unlike a briefcase, a typical laptop computer may contain as much as 40 million pages of information, he said. Even if some of those computer files are not specifically listed in the search warrant affidavit, federal authorities have routinely argued that, on a seized computer, all files can be reviewed legally and used in building a criminal case because they are considered "in plain view" of authorities, Samuel added.

"The courts ought to recognize it's a flawed analogy and stop issuing warrants as if it's just a briefcase," the defense lawyer concluded. What once were constitutional limitations on search warrants, he added, "have become distorted beyond anybody's wildest dreams."