Apr 022013
 April 2, 2013  Posted by  Court, Laws, Surveillance

Orin Kerr writes:

As regular readers know, I have written at length about ex ante search restrictions on computer warrants. As I explained in a 2010 article in the Virginia Law Review, these restrictions are conditions of how a warrant is executed that some magistrate judges have begun to impose in cases involving searches of a computer. I have argued that such conditions are not only ultra vires but actually harmful because they impede the development of the law. Specifically, post-search litigation over the execution of the warrant turns into litigation over compliance with the ex ante search restrictions instead of compliance with the reasonableness requirement of the Fourth Amendment. As a result, courts do not have the opportunity to develop the Fourth Amendment law that applies to searching computers with a warrant. The result is an ironic cycle.

Read more on The Volokh Conspiracy.

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