Orin Kerr’s article, “Fourth Amendment Seizures of Computer Data,” is in the Yale Law Journal, 119:700 2010, and is available online. Here is the abstract:
What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying those functions to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.
This article reflects a change in Orin’s thinking, as he forthrightly notes:
Finally, this Article acknowledges a change in my own thinking. A few years ago, I argued that mere copying should not be considered a Fourth Amendment seizure.8 I acknowledged that copying ordinarily will be regulated by the Fourth Amendment. To my mind, however, copying was at most regulated by the restrictions on searches rather than seizures, and those restrictions were limited to copying that interfered with the operation of the machine from which the copy was made. I have now concluded that my prior approach was wrong. My earlier approach did not recognize the importance of access to data in the regulation of government evidence collection. Further, my earlier approach did not appreciate that a middle ground was possible to avoid some of the overbroad results that seem to follow from labeling copying a seizure. This Article identifies the new middle ground and explains why I now reject my earlier view.