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VT Supreme Court Hears E-Privacy Case

PRIVACY LAW—U.S.

June 23, 2011

Forbes reports on a case before Vermont's Supreme Court on how the Fourth Amendment right to protect citizens from unwarranted searches and seizures should apply to electronic devices such as computers, iPads and smartphones. The case stems from a search warrant obtained by Burlington police to search such devices as they investigated potential identity theft. State Attorney Andrew Strauss argued that the judge who granted the search warrant placed too many restrictions on it "by detailing how the search was to be conducted." An Electronic Frontier Foundation spokesperson said the judge acted reasonably to protect privacy. Heidi Salow, CIPP, of Greenberg Traurig, told the Daily Dashboard that "given the wealth of private information that people store on laptops, desktops, iPads, smartphones and other electronic devices these days, it makes sense for courts to limit the scope of and require particularity in search warrants so that the seizure of electronic devices is closely tied to a law  enforcement investigation. On the other hand, criminals have gotten more savvy about hiding data on devices, which makes it harder for law enforcement to search electronic files." While the Electronic Communications Privacy Act (ECPA) was passed to supplement the Fourth Amendment, Salow added that "ECPA was passed well before Congress could have envisioned the amount of data available on electronic devices," and there have been many conflicting court interpretations of ECPA, demonstrating that "ECPA needs to be brought up-to-speed with the digital age, which will provide greater clarity for law enforcement and hopefully avoid lengthy litigation related to the need for warrants and how specific they must be."
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