Copying as Search and Seizure: Via CYB3RCRIM3 blog.

In other posts, I’ve argued that copying data is a “seizure” under the 4th Amendment.

As I explained in those posts, if copying is a 4th Amendment seizure, law enforcement officers must either get a warrant authorizing the seizure or be able to use one of the exceptions to the warrant requirement to justify copying the data. As I noted, if copying data is neither a search nor a seizure, law enforcement officers can copy data without satisfying any of the 4th Amendment’s requirements.

In the earlier posts I explained why I think copying is a seizure, not a search. I also noted that the issue hasn’t come up much; the only reported decision explicitly addressing it is U.S. v. Gorshkov, 2001 WL 1024026 (U.S. District Court for the Western District of Washington 2001), which I discussed in an earlier post.

The Gorshkov court held that FBI agents’ copying data Gorshkov had stored on a server

was not a seizure under the Fourth Amendment because it did not interfere with Defendant's or anyone else's possessory interest in the data. The data remained intact and unaltered. It remained accessible to Defendant and any co-conspirators or partners with whom he had shared access. The copying of the data had absolutely no impact on his possessory rights.Therefore it was not a seizure under the Fourth Amendment. . . .

U.S. v. Gorshkov, supra. I disagree. As I’ve explained in earlier posts, I think copying involves a transfer of some quantum of the value or utility of property, such as data, and therefore constitutes a 4th Amendment seizure.

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