The Constitutional Right to Deletion: The Latest Battle in the War of Technology v. Privacy

I. Introduction The Framers drafted the Fourth Amendment as a response to the British Crown's habit of effectuating general warrants that were "not grounded upon sworn oaths of specific infractions by particular individuals, and thus not limited in scope and application." 1 Executing general warrants, the King's officials were permitted to enter one's home and seize all of the homeowner's books and papers, hoping to find evidence of criminal activity. 2 With that in mind, the Framers ensured that the Fourth Amendment barred general warrants. 3 The text of the Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 4 Thus, every search and seizure must be reasonable, and a warrant may only be issued if it describes, with accuracy, the place to be searched and the person or thing to be seized. 5 The Fourth Amendment was drafted to regulate searches of homes and physical property; hence, ambiguity exists where law enforcement officials encounter evidence contained within computer hard drives and electronic storage devices. 6 Stemming from the lack of clarity regarding Fourth Amendment procedures for computer search warrants, the over seizure of data is common; Federal Rule of Criminal Procedure 41(g) has failed to adequately ...