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Excerpt from Computer-Based Investigation and Discovery in Criminal Cases: A Guide for U.S. Magistrate Judges

Federal Judicial Center National Workshop for Magistrate Judges, Feb. 19-21, 2002


Excerpt from Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Second Edition (Computer Crime and Intellectual Property Section, Criminal Division, U.S. Department of Justice, September 2002)

APPENDIX F



Sample Language for Search Warrants and Accompanying
Affidavits to Search and Seize Computers


This appendix provides sample language for agents and prosecutors who wish to obtain a warrant authorizing the search and seizure of computers. The discussion focuses first on the proper way to describe the property to be seized in the warrant itself, which in turn requires consideration of the role of the computer in the offense. The discussion then turns to drafting an accompanying affidavit that establishes probable cause, describes the agent's search strategy, and addresses any additional statutory or constitutional concerns.


I. DESCRIBING THE PROPERTY TO BE SEIZED FOR THE WARRANT


The first step in drafting a warrant to search and seize computers or computer data is to describe the property to be seized for the warrant itself. This requires a particularized description of the evidence, contraband, fruits, or instrumentality of crime that the agents hope to obtain by conducting the search.

Whether the "property to be seized" should contain a description of information (such as computer files) or physical computer hardware depends on the role of the computer in the offense. In some cases, the computer hardware is itself contraband, evidence of crime, or a fruit or instrumentality of crime. In these situations, Fed. R. Crim. P. 41 expressly authorizes the seizure of the hardware, and the warrant will ordinarily request its seizure. In other cases, however, the computer hardware is merely a storage device for electronic files that are themselves contraband, evidence, or instrumentalities of crime. In these cases, the warrant should request authority to search for and seize the information itself, not the storage devices that the agents believe they must seize to recover the information. Although the agents may need to seize the storage devices for practical reasons, such practical considerations are best addressed in the accompanying affidavit. The "property to be seized" described in the warrant should fall within one or more of the categories listed in Rule 41(b):



(1) "property that constitutes evidence of the commission of a criminal offense"


This authorization is a broad one, covering any item that an investigator "reasonably could . . . believe" would reveal information that would aid in a particular apprehension or conviction. Andresen v. Maryland, 427 U.S. 463, 483 (1976). Cf. Warden v. Hayden, 387 U.S. 294, 307 (1967) (noting that restrictions on what evidence may be seized result mostly from the probable cause requirement). The word "property" in Rule 41(b)(1) includes both tangible and intangible property. See United States v. New York Tel. Co., 434 U.S. 159, 169 (1977) ("Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause."); United States v. Biasucci, 786 F.2d 504, 509-10 (2d Cir. 1986) (holding that the fruits of video surveillance are "property" that may be seized using a Rule 41 search warrant). Accordingly, data stored in electronic form is "property" that may properly be searched and seized using a Rule 41 warrant. See United States v. Hall, 583 F. Supp. 717, 718-19 (E.D. Va. 1984).


(2) "contraband, the fruits of crime, or things otherwise criminally possessed"

Property is contraband "when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken." Hayden, 387 U.S. at 302 (quoting Gouled v. United States, 255 U.S. 298, 309 (1921)). Common examples of items that fall within this definition include child pornography, see United States v. Kimbrough, 69 F.3d 723, 731 (5th Cir. 1995), pirated software and other copyrighted materials, see United States v. Vastola, 670 F. Supp. 1244, 1273 (D.N.J. 1987), counterfeit money, narcotics, and illegal weapons. The phrase "fruits of crime" refers to property that criminals have acquired as a result of their criminal activities. Common examples include money obtained from illegal transactions, see United States v. Dornblut, 261 F.2d 949, 951 (2d Cir. 1958) (cash obtained in drug transaction), and stolen goods. See United States v. Burkeen, 350 F.2d 261, 264 (6th Cir. 1965) (currency removed from bank during bank robbery).



(3) "property designed or intended for use or which is or had been used as a means of committing a criminal offense"


Rule 41(b)(3) authorizes the search and seizure of "property designed or intended for use or which is or had been used as a means of committing a criminal offense." This language permits courts to issue warrants to search and seize instrumentalities of crime. See United States v. Farrell, 606 F.2d 1341, 1347 (D.C. Cir. 1979). Computers may serve as instrumentalities of crime in many ways. For example, Rule 41 authorizes the seizure of computer equipment as an instrumentality when a suspect uses a computer to view, acquire, and transmit images of child pornography. See Davis v. Gracey, 111 F.3d 1472, 1480 (10th Cir. 1997) (stating in an obscenity case that "the computer equipment was more than merely a 'container' for the files; it was an instrumentality of the crime."); United States v. Lamb, 945 F. Supp. 441, 462 (N.D.N.Y. 1996). Similarly, a hacker's computer may be used as an instrumentality of crime, and a computer used to run an illegal Internet gambling business would also be an instrumentality of the crime.


Here are examples of how to describe property to be seized when the computer hardware is merely a storage container for electronic evidence:

(A) All records relating to violations of 21 U.S.C. § 841(a) (drug trafficking) and/or 21 U.S.C. § 846 (conspiracy to traffic drugs) involving [the suspect] since January 1, 1996, including lists of customers and related identifying information; types, amounts, and prices of drugs trafficked as well as dates, places, and amounts of specific transactions; any information related to sources of narcotic drugs (including names, addresses, phone numbers, or any other identifying information); any information recording [the suspect's] schedule or travel from 1995 to the present; all bank records, checks, credit card bills, account information, and other financial records.



The terms "records" and "information" include all of the foregoing items of evidence in whatever form and by whatever means they may have been created or stored, including any electrical, electronic, or magnetic form (such as any information on an electronic or magnetic storage device, including floppy diskettes, hard disks, ZIP disks, CD-ROMs, optical discs, backup tapes, printer buffers, smart cards, memory calculators, pagers, personal digital assistants such as Palm Pilot computers, as well as printouts or readouts from any magnetic storage device); any handmade form (such as writing, drawing, painting); any mechanical form (such as printing or typing); and any photographic form (such as microfilm, microfiche, prints, slides, negatives, videotapes, motion pictures, photocopies).


(B) Any copy of the X Company's confidential May 17, 1998 report, in electronic or other form, including any recognizable portion or summary of the contents of that report.

(C) [For a warrant to obtain records stored with an ISP pursuant to 18 U.S.C. Section 2703(a)] All stored electronic mail of any kind sent to, from and through the e-mail address [JDoe@isp.com], or associated with the user name "John Doe," account holder [suspect], or IP Address [xxx.xxx.xxx.xxx] / Domain name [x.com] between Date A at Time B and Date X at Time Y. Content and connection log files of all activity from January 1, 2000, through March 31, 2000, by the user associated with the e-mail address [JDoe@isp.com], user name "John Doe," or IP Address [xxx.xxx.xxx.xxx] / Domain name [x.x.com] between Date A at Time B and Date X at Time Y. including dates, times, methods of connecting (e.g., telnet, ftp, http), type of connection (e.g., modem, cable / DSL, T1 / LAN), ports used, telephone dial-up caller identification records, and any other connection information or traffic data. All business records, in any form kept, in the possession of [Internet Service Provider], that pertain to the subscriber(s) and account(s) associated with the e-mail address [JDoe@isp.com], user name "John Doe," or IP Address [xxx.xxx.xxx.xxx] / Domain name [x.x.com] between Date A at Time B and Date X at Time Y, including records showing the subscriber's full name, all screen names associated with that subscriber and account, all account names associated with that subscriber, methods of payment, phone numbers, all residential, business, mailing, and e-mail addresses, detailed billing records, types and lengths of service, and any other identifying information.



Here are examples of how to describe the property to be seized when the computer hardware itself is evidence, contraband, or an instrumentality of crime:

(A) Any computers (including file servers, desktop computers, laptop computers, mainframe computers, and storage devices such as hard drives, Zip disks, and floppy disks) that were or may have been used as a means to provide images of child pornography over the Internet in violation of 18 U.S.C. § 2252A that were accessible via the World Wide Website address www.[xxxxxxxx].com.


(B) IBM Thinkpad Model 760ED laptop computer with a black case


II. DRAFTING AFFIDAVITS IN SUPPORT OF WARRANTS TO SEARCH AND SEIZE COMPUTERS


An affidavit to justify the search and seizure of computer hardware and/or files should include, at a minimum, the following sections: (1) definitions of any technical terms used in the affidavit or warrant; (2) a summary of the offense, and, if known, the role that a targeted computer plays in the offense; and (3) an explanation of the agents' search strategy. In addition, warrants that raise special issues (such as sneak-and-peek warrants, or warrants that may implicate the Privacy Protection Act, 42 U.S.C. § 2000aa) require thorough discussion of those issues in the affidavit. Agents and prosecutors with questions about how to tailor an affidavit and warrant for a computer-related search may contact either their local CTC (see Introduction, p. ix) or the Computer Crime & Intellectual Property Section at (202) 514-1026.


A. Background Technical Information

It may be helpful to include a section near the beginning of the affidavit explaining any technical terms that the affiant may use. Although many judges are computer literate, judges generally appreciate a clear, jargon-free explanation of technical terms that may help them understand the merits of the warrant application. At the same time, agents and prosecutors should resist the urge to pad affidavits with long, boilerplate descriptions of well-known technical phrases. As a rule, affidavits should only include the definitions of terms that are likely to be unknown by a generalist judge and are used in the remainder of the affidavit. Here are some sample definitions:



Addresses


Every device on the Internet has an address that allows other devices to locate and communicate with it. An Internet Protocol (IP) address is a unique number that identifies a device on the Internet. Other addresses include Uniform Resource Locator (URL) addresses, such as "http://www.usdoj.gov," which are typically used to access web sites or other services on remote devices. Domain names, host names, and machine addresses are other types of addresses associated with Internet use.


Cookies


A cookie is a file that is generated by a web site when a user on a remote computer accesses it. The cookie is sent to the user's computer and is placed in a directory on that computer, usually labeled "Internet" or "Temporary Internet Files." The cookie includes information such as user preferences, connection information such as time and date of use, records of user activity including files accessed or services used, or account information. The cookie is then accessed by the web-site on subsequent visits by the user, in order to better serve the user's needs.


Data Compression


A process of reducing the number of bits required to represent some information, usually to reduce the time or cost of storing or transmitting it. Some methods can be reversed to reconstruct the original data exactly; these are used for faxes, programs and most computer data. Other methods do not exactly reproduce the original data, but this may be acceptable (for example, for a video conference).


Denial of Service Attack (DoS Attack)

A hacker attempting a DoS Attack will often use multiple IP or e-mail addresses to send a particular server or web site hundreds or thousands of messages in a short period of time. The server or web-site will devote system resources to each transmission. Due to the limited resources of servers and web-sites, this bombardment will eventually slow the system down or crash it altogether.



Domain


A domain is a group of Internet devices that are owned or operated by a specific individual, group, or organization. Devices within a domain have IP addresses within a certain range of numbers, and are usually administered according to the same set of rules and procedures.


Domain Name


A domain name identifies a computer or group of computers on the Internet, and corresponds to one or more IP addresses within a particular range. Domain names are typically strings of alphanumeric characters, with each "level" of the domain delimited by a period (e.g., Computer.networklevel1.networklevel2.com). A domain name can provide information about the organization, ISP, and physical location of a particular network user.


Encryption


Encryption refers to the practice of mathematically scrambling computer data as a communications security measure. The encrypted information is called "ciphertext." "Decryption" is the process of converting the ciphertext back into the original, readable information (known as "plaintext"). The word, number or other value used to encrypt/decrypt a message is called the "key."


File Transfer Protocol (FTP)


FTP is a method of communication used to send and receive files such a word-processing documents, spreadsheets, pictures, songs, and video files. FTP sites are online "warehouses" of computer files that are available for copying by users on the Internet. Although many sites require users to supply credentials (such as a password or user name) to gain access, the IP Address of the FTP site is often all that is required to access the site, and users are often identified only by their IP addresses.


Firewall

A firewall is a dedicated computer system or piece of software that monitors the connection between one computer or network and another. The firewall is the gatekeeper that certifies communications, blocks unauthorized or suspect transmissions, and filters content coming into a network. Hackers can sidestep the protections offered by firewalls by acquiring system passwords, "hiding" within authorized IP addresses using specialized software and routines, or placing viruses in seemingly innocuous files such as e-mail attachments.



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