The Fourth Amendment Trumps Unbridled Government Searches Of Electronic Data...(And What Companies Should Know To Protect Their Interests)


There are few things worse for a business than starting the day with FBI agents at the door demanding to search the files and computers with a search warrant in hand. Matters have not improved for businesses in the last ten years. Courts have struggled with balancing the government's interest in discovering evidence of a crime before it is possibly destroyed by the target of a criminal investigation, and the Fourth Amendment right against unreasonable searches and seizures. This balancing of competing priorities is even more difficult now that the majority of business records are in electronic format, which makes an on site review for material covered by the search warrant virtually impossible. Consequently, the government has been obtaining search warrants that allow entire computer files and email communications to be copied, and then seized in their entirety by the government. Needless to say, such an unbridled search without reasonable constraints is tantamount to a "general warrant" that is expressly prohibited by the Fourth Amendment.

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