Requiring protocols in computer search warrants

A controversy is brewing in the United States as to whether the magistrate who issues a computer search warrant can require the officer seeking the warrant to provide a protocol to be used in executing the search. The U.S. Department of Justice's guidelines on searching and seizing computers recommend including a protocol in the warrant application when possible. The controversy raises two interacting issues: the extent to which a magistrate has the authority to prescribe how computer searches should be conducted and the extent to which the expectation of privacy in a computer is “different” from that for other containers. The magistrates who require protocols insist that they have the authority to do so under the Fourth Amendment. There are very few federal cases on the issue, none of which are clearly dispositive, and one state case. The article explains why the controversy has arisen and analyzes how it may ultimately be resolved.