Nearly every case involves a cell phone or an online account. Laws on device and account searches are continuing to evolve, as courts reconsider old doctrines that do not fit with the realities of the digital age. Below, find sample motions on suppressing emails, passcodes, and other electronically stored information.

Geofence warrants, a type of reverse search warrant, compel companies, like Google, to turn over substantial information about devices interacting with their technology within a particular geographic region. For this reason, geofence warrants mark an unprecedented increase in the government's ability to locate individuals without investigation. This primer will show you how geofence warrants are constructed and outline strategies to challenge these warrants when they appear in criminal cases. 

In recent years, the government has increasingly turned to hacking as an investigative technique. Specifically, the Federal Bureau of Investigation (“FBI”) has begun deploying malware: software designed to infiltrate and control, disable, or surveil a computer’s use and activity.

10-cv-04059-ERK (E.D.N.Y.)

NACDL commenced a lawsuit with the ACLU challenging a U.S. Customs and Border Protection policy that authorizes searches of the contents of travelers’ laptop computers and other electronic storage devices at border crossings, notwithstanding the absence of probable cause, reasonable suspicion or any indicia of wrongdoing. Filed in the Eastern District of New York, the suit sought to enjoin future enforcement of the policy. NACDL was both a plaintiff and co-counsel in the case, which was dismissed in December 2013 and pending reconsideration as of April 2014.

This comment from the Fourth Amendment Center addresses the National Institute of Standards and Technology's report "Digital Investigation Techniques: A Scientific Foundation Review."

NACDL adopts a report and recommendations on law enforcement searches of digital evidence.

Courts have long made it clear that agents can search the bags of people entering the country. For the past decade or so, U.S. Customs and Border Protection (CBP) has applied that logic to digital devices. NACDL members are uniquely exposed to abuse in this context: digital devices store materials and information subject to the attorney-client privilege and attorney work-product doctrine, as well as information on overseas clients and witnesses, and other extremely sensitive materials that could be covered by Rule 1.6 of the Model Rules of Professional Responsibility.

Courts have long made it clear that agents can search the bags of people entering the country. For the past decade or so, U.S. Customs and Border Protection (CBP) has applied that logic to digital devices. NACDL members are uniquely exposed to abuse in this context: digital devices store materials and information subject to the attorney-client privilege and attorney work-product doctrine, as well as information on overseas clients and witnesses, and other extremely sensitive materials that could be covered by Rule 1.6 of the Model Rules of Professional Responsibility.

Presented by: Esha Bhandari, Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union

Presented by Matt Mitchell, hacker, civil rights advocate, and Director of Digital Safety & Privacy, at Tactical Tech (also known as the Tactical Technology Collective)

Digital Forensics Guide Cell Phone Location and Tracking Forensics. 

Brief of Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union Foundation, ACLU of Wisconsin, Inc., and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument: The warrant violated the Fourth Amendment because it failed to particularly describe what was being searched and where those searches would occur. Particularity was critical given the series of invasive searches and seizures carried out each time the malware was deployed. Other constitutionally suspect types of warrants offer far more particularity than the warrant here.

Brief of Amici Curiae Electronic Frontier Foundation, Asian Americans Advancing Justice-Asian Law Caucus, Council on American-Islamic Relations (CAIR), CAIR California, CAIR Florida, CAIR New York, CAIR Ohio, and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument: Digital devices contain and access vast amounts of highly personal information. The border search exception is narrow. All border searches of digital devices, whether "manual" or "forensic," are highly intrusive of personal privacy and are thus "non-routine." A probable cause warrant should be required for boarder searches of data stored or accessible on digital devices. A probable cause warrant should be required given the highly personal information stored and accessible on digital devices. A probable cause warrant should be required because searching digital data is not tethered to the narrow purposes of the Border Search Exception.

Brief of Amici Curiae Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument: The warrant failed to particularly describe what was being searched and where those searches would occur. Particularity was critical given the series of invasive searches and seizures carried out each time the malware was deployed. Other constitutionally suspect types of warrants offer far more particularity than the warrant here.

Brief of Amici Curiae Electronic Frontier Foundation, Asian Americans Advancing Justice-Asian Law Caucus, Brennan Center for Justice, Council on American-Islamic Relations (CAIR), CAIR California, CAIR Florida, CAIR Missouri, CAIR New York, CAIR Ohio, CAIR Dallas/Fort Worth, and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant.

Argument: Digital devices contain and access vast amounts of highly personal information. The border search exception is narrow. All border searches of digital devices, whether "manual" or "forensic," are highly invasive of personal privacy and are thus "non-routine." A probable cause warrant should be required for boarder searches of data stored or accessible on digital devices. A probable cause warrant should be required given the highly personal information stored and accessible on digital devices. A probable cause warrant should be required because searching digital data is not tethered to the narrow purposes of the boarder search exception.