Justice Department releases guide to searching, seizing computers and electronic surveillance

Publication provides systematic guidance on legal issues linked to electronic evidence, outlines how electronic surveillance laws apply to the Internet

Recognizing that criminals have not missed the computer revolution, the Department of Justice has released a manual devoted exclusively to the laws of searching and seizing computers and electronic surveillance on the Internet. This document was written in an effort to assist law enforcement agencies across the country in obtaining electronic evidence in criminal investigations.

"The guidebook is important not only for law enforcement agents and prosecutors, but also for any American who uses a computer," said James K. Robinson, Assistant Attorney General of the Criminal Division. "Electronic privacy is important to us all, and the Department wants everyone to know what their rights are."

Entitled, "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations," the Criminal Division's Computer Crime and Intellectual Property Section (CCIPS) created this document. The dramatic increase in computer-related crime requires prosecutors and law enforcement agents to understand how to obtain electronic evidence stored in computers. Electronic records such as computer network logs, e-mails, word processing files, and ".jpg" picture files increasingly provide the government with important (and sometimes essential) evidence in criminal cases.

The publication provides federal law enforcement agents and prosecutors with systematic guidance that can help them understand the legal issues that arise when they seek electronic evidence in criminal investigations. The manual outlines how electronic surveillance laws apply to the Internet, as well as how the courts have applied the Fourth Amendment to computers.

Report updates 1994 guidelines and subsequent supplements
This publication supersedes Federal Guidelines for Searching and Seizing Computers (1994), as well as 1997 and 1999 Supplements. Although the interagency group that produced the guidelines achieved its goal of offering "systematic guidance to all federal agents and attorneys" in the law of computer search and seizure, intervening changes in law and the dramatic expansion of the Internet since 1994 have fostered the need for fresh guidance. This manual is designed to combine an updated version of the guidelines' advice on searching and seizing computers with guidance on the statutes that govern obtaining electronic evidence in cases involving computer networks and the Internet. The manual offers assistance, not authority. Its analysis and conclusions reflect current thinking on difficult areas of law, and do not represent the official position of the Justice Department or any other agency. It has no regulatory effect.

The law governing electronic evidence in criminal investigations has two primary sources: the Fourth Amendment to the U.S. Constitution, and the statutory privacy laws codified at 18 U.S.C. §§ 2510-22, 18 U.S.C. §§ 2701-11, and 18 U.S.C. §§ 3121-27. Although constitutional and statutory issues overlap in some cases, most situations present either a constitutional issue under the Fourth Amendment or a statutory issue under these three statutes. The organization of this manual reflects that division: Chapters 1 and 2 address the Fourth Amendment law of search and seizure, and Chapters 3 and 4 focus on the statutory issues, which arise mostly in cases involving computer networks and the Internet.

The manual will be distributed to law enforcement. It is available to the public at www.cybercrime.gov/searchmanual.htm.

Edited by Bob Arguero, Managing Editor, GovCon