Computer Crime and Intellectual Property Section (CCIPS)

1. Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations
2. Federal Criminal Code Related to Searching and Seizing Computers
1. The USA PATRIOT Act
2. Other Federal Statutes
3. The Fourth Amendment and the Internet
4. Communications Assistance for Law Enforcement Act (CALEA), CALEA Implementation Section, USA Bulletin (May 2001)
5. Recognizing and Meeting Title III Concerns in Computer Investigations, Robert Strang, USA Bulletin (March 2001)
6. Computer Records and the Federal Rules of Evidence, Orin S. Kerr, USA Bulletin (March 2001)

A. Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations

NEW, REVISED VERSION PUBLISHED JULY 2002

This publication provides a comprehensive guide to the legal issues that arise when federal law enforcement agents search and seize computers and obtain electronic evidence in criminal investigations. The topics covered include the application of the Fourth Amendment to computers and the Internet, the Electronic Communications Privacy Act, workplace privacy, the law of electronic surveillance, and evidentiary issues. This updated version includes discussion of significant changes to relevant Federal law arising from the USA PATRIOT Act of 2001, and supersedes the previous version of "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations," published January 2001, as well as "Federal Guidelines for Searching and Seizing Computers" (1994), and the Guidelines' 1997 and 1999 Supplements.

• Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations
• Manual main text
• Appendices
• Download the WordPerfect file [794K].
• Download the PDF version of the document [492K]

B. Federal Criminal Code Related to Searching and Seizing Computers

1. The USA PATRIOT Act

The USA PATRIOT Act, effective October 26, 2001, resulted in a number of significant changes to various Federal statutes governing the searching and seizing of computers and the gathering of electronic evidence. The Field Guidance memorandum provides an overview of the various ways in which the USA PATRIOT Act has changed the law in this area.

• Field Guidance on New Authorities that Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act of 2001
  

In order to highlight changes in the law resulting from the USA PATRIOT Act, CCIPS has produced a redlined document showing various Federal statutes relevant to computer search and seizure and electronic evidence-gathering issues, and how these statutes have changed under the new law. Please note that this is a draft document designed to provide an overview of recent changes, and may contain typographical errors. It is not an official CCIPS publication.

• (Unofficial) Redline Showing Changes Resulting from USA PATRIOT Act

2. Current Federal Statutes

Below are links to current (post-USA PATRIOT Act) versions of Federal statutes governing computer search and seizure and electronic evidence-gathering:

• 18 U.S.C. § 2510.   Definitions
• 18 U.S.C. § 2511.   Interception and disclosure of wire, oral, or electronic communications prohibited
• 18 U.S.C. § 2701.   Unlawful Access to Stored Communications
• 18 U.S.C. § 2702.   Disclosure of Contents
• 18 U.S.C. § 2703.   Requirements for Governmental Access
• 18 U.S.C. § 2705.   Delayed notice
• 18 U.S.C. § 2711.   Definitions
• 42 U.S.C. § 2000aa.   Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses

Searchable databases of the U.S. Code are available through the following links, but users should be sure to note the most recent modification dates to ensure they are viewing the current versions:

• House of Representatives site: http://uscode.house.gov/usc.htm
• Cornell Legal Information Institute: http://www4.law.cornell.edu/uscode/

C.  The Fourth Amendment and the Internet

• Statement of Kevin Di Gregory, Deputy Assistant Attorney General Criminal Division, Before the Subcommittee on the Constitution of the House Committee on the Judiciary on "Carnivore" and the Fourth Amendment (July 24, 2000)

• Testimony of Kevin V. Di Gregory, Deputy Assistant Attorney General, on the Fourth Amendment and the Internet before the Subcommittee on the Constitution of the House Committee on the Judiciary (April 6, 2000)
  

D. Communications Assistance for Law Enforcement Act (CALEA), CALEA Implementation Section, USA Bulletin (May 2001)

Electronic surveillance is one of the most valuable tools in law enforcement's crime fighting arsenal. In many instances, criminal activity has been either thwarted, or, if crimes have been committed, the criminals have been apprehended as a result of lawfully-authorized electronic surveillance.

Additional information on this subject is available via the link below.

• Communications Assistance for Law Enforcement Act (CALEA), CALEA Implementation Section, USA Bulletin (May 2001)
  

E.  Recognizing and Meeting Title III Concerns in Computer Investigations, Robert Strang, USA Bulletin (March 2001)

The dramatic increase in crimes involving the Internet, and computer crimes more generally, is well documented. The "2000 CSI/FBI Computer Crime and Security Survey" documented that 90% of the 643 respondents (primarily large U.S. corporations and government agencies) detected computer security breaches within the last twelve months, totaling hundreds of millions of dollars in losses. In light of the increased criminal opportunities created by the ever-growing reliance on, and growing interconnectedness between network computers, there can be no doubt that experienced and sophisticated computer criminals pose a substantial challenge to law enforcement.

Additional information on this subject is available via the link below.

• Recognizing and Meeting Title III Concerns in Computer Investigations, Robert Strang, USA Bulletin (March 2001)

F.  Computer Records and the Federal Rules of Evidence, Orin S. Kerr, USA Bulletin (March 2001)

This article explains some of the important issues that can arise when the government seeks the admission of computer records under the Federal Rules of Evidence. It is an excerpt of a larger DOJ manual entitled "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations", which is available on the internet at www.cybercrime.gov/searchmanual.htm.

Additional information on this subject is available via the link below:

• Computer Records and the Federal Rules of Evidence, Orin S. Kerr, USA Bulletin (March 2001)