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105 Colum. L. Rev. 279 (2005)
Digital Evidence and the New Criminal Procedure

handle is hein.journals/clr105 and id is 323 raw text is: ESSAY DIGITAL EVIDENCE AND THE NEW CRIMINAL PROCEDURE Orin S. Kerr* The widespread use of computers in recent years has led to a new type of evidence in criminal cases: digital evidence, consisting of zeros and ones of electricity. In this Essay, Professor Kerr considers whether traditional rules of criminal procedure can effectively regulate investigations involving digital evidence. Kerr concludes that the new methods of gathering digital evidence trigger a need for new legal standards. Existing law is tailored to the gather- ing of physical evidence and eyewitness testimony; applying that law to digi- tal evidence collection produces a number of surprising results. Professor Kerr contends that new rules are needed, and offers preliminary thoughts on what those rules should look like and which institutions should generate them. INTRODUCTION ...................................................... 279 I. PHYSICAL EVIDENCE VERSUS DIGITAL EVIDENCE ............. ..281 A. Physical Crimes and Physical Crime Investigations .... 281 B. Computer Crimes and Computer Crime Investigations .................................... .283 II. DIGITAL EVIDENCE AND THE FAILURE OF EXISTING RULES ... 289 A. Physical Crimes and Rules of Criminal Procedure ..... .290 B. Digital Evidence and Physical-World Rules ............ 292 1. Evidence from Third Parties and the Subpoena Process .......................................... 293 2. Prospective Surveillance and the Problem of Wiretapping .................................. 296 3. Searching the Target's Computer and the Warrant Rules ............................................ 299 III. TOWARD NEW RULES OF CRIMINAL PROCEDURE ............. ..306 A. Collection of Stored Evidence from Third Parties..... 309 B. Prospective Surveillance .............................. 310 C. The Computer Forensics Process ..................... 313 CONCLUSION ....................................................... 317 INTRODUCTION This Essay considers how the law of criminal procedure should change in response to the increasing number of criminal cases based * Associate Professor, George Washington University Law School. Thanks to John Duffy, Laura Heymann, Mark Lemley, Cynthia Lee, Chip Lupu, Dan Markel, Tom Morgan, Julian Mortenson, Spencer Overton, Steve Schooner, David Sklansky, Daniel Solove, Peter Swire, and Bob Tuttle for their helpful comments on a prior draft. 279

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