Emory Law Journal


Emily Berman


Searches of electronically stored information present a Fourth Amendment challenge because it is often impossible for investigators to identify and collect, at the time a warrant is executed, only the specific data whose seizure is authorized. Instead, the government must seize the entire storage medium and extract responsive information later, thereby ensuring that they will encounter vast amounts of non-responsive (and often intensely personal) information contained on the device. In response, some magistrate judges have begun issuing warrants that place limits on how those searches may be carried out¿a development that some have referred to as a ¿magistrates¿ revolt.¿ This Article argues that rather than ¿revolt,¿ these judges simply adopted a time-honored privacy-protection tool from the foreign intelligence collection context¿minimization¿that will allow them to draw on lessons learned in that context to safeguard Fourth Amendment rights during digital searches.