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94 Denv. L. Rev. 651 (2016-2017)
You've Got Mail: Decoding the Bits and Bytes of Fourth Amendment Computer Searches after Ackerman

handle is hein.journals/denlr94 and id is 685 raw text is: YOU'VE GOT MAIL! DECODING THE BITS AND BYTES OF FOURTH AMENDMENT COMPUTER SEARCHES AFTER ACKERMAN ABSTRACT In the digital age, courts have been searching for rational solutions and definitions regarding computer searches that comport with current Fourth Amendment law, specifically the private search doctrine. Recent- ly, in United States v. Ackerman, the U.S. Court of Appeals for the Tenth Circuit held that when a government entity or agent opens and examines emails previously unopened by private actors, they have conducted a search to which the Fourth Amendment applies. Although the ultimate holding is consistent with the Fourth Amendment's reasonable expecta- tion of privacy doctrine, the Tenth Circuit offered a controversial alterna- tive rationale rooted in the trespass-to-chattels doctrine. This alternative rationale has far-reaching implications, specifically regarding the viabil- ity of the private search doctrine as applied to computer searches. This Comment first argues that courts should adopt a file ap- proach in Fourth Amendment cases involving searches of computers rather than the previously proposed physical device and human ob- servation approaches. A person who leaves a file open on a computer does not possess a reasonable expectation of privacy in the open file, but a person does possess a reasonable expectation of privacy in closed files. Secondly, this Comment argues that the reintroduction of the trespass-to- chattels limb of Fourth Amendment searches will practically extinguish the private search doctrine as applied to computers, unless courts adopt a different definition of trespass, specifically a definition anchored in the unit of a computer file. The abstract concept of a computer file is analo- gous to the metes and bounds of physical property, and the data con- tained within the file is analogous to the property contained within said physical metes and bounds. Under both the reasonable expectation of privacy and trespass-to-chattels doctrines, focusing on the unit of a com- puter file is the most favorable approach. In short, opening a file on a computer should be considered a distinct search under the Fourth Amendment and therefore should require a distinct justification. TABLE OF CONTENTS INTRODUCTION................................................ 652 I. BACKGROUND. ...................................... ........ 656 A. The Fourth Amendment in the Digital Age ............... 656 B. The Private Search Doctrine Circuit Split ............... 659 651

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