1
Search and Seizure of Computers and Data: Annotated Bibliography
Kenneth J. Withers*
June 25, 2004
Cases
Davis v. Gracey, 111 F.3d 1472 (10th Cir. 1997). Seizure of a computer pursuant to a
warrant was not invalidated by the incidental, concomitant seizure of the computer’s “in-
nocent contents,” such as e-mail messages and stored software, where the computer was
an “instrumentality of the crime.”
U.S. v. Bach, 310 F.3d 1063 (8th Cir. 2002), cert. denied, 538 U.S. 993 (2003). Internet
Service Provider (ISP) technicians searched the defendant’s e-mail account for child por-
nography pursuant to a warrant faxed to them by a government agent. The fact that no
government agent was present during the search was not a Fourth Amendment violation
because the expertise of the ISP technicians to conduct the search was far superior to that
of the agents, the items seized were located on the ISP’s property, the search was author-
ized by a judge, and government agents complied with all provisions of the Electronic
Communications Privacy Act (ECPA), 18 U.S.C. § 2701.
U.S. v. Bailey, 272 F. Supp. 2d 822 (D. Neb. 2003). The defendant’s subscription to the
“Candyman” e-group, an Internet site that “frequently, obviously, unquestionably and
sometimes automatically” distributes child pornography to subscribers, established prob-
able cause for a search of the defendant’s computer, even though there was no direct evi-
dence that the defendant actually received child pornography. See also U.S. v. Shields,
2004 WL 832937 (M.D. Pa. Apr. 14, 2004) (denying defendant’s motion to suppress evi-
dence in a factually similar case and concurring with Bailey’s reasoning).
U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998). After a repairman inadvertently dis-
covered child pornography stored on the defendant’s computer, agents conducted a
broader, warrantless search of the computer in order to find additional evidence. The de-
fendant’s expectation of privacy in his computer files was not lost by his turning the
computer over for repairs; t