Vt. Supreme Court hears police e-privacy case

Associated Press
Allen Gilbert, director of the Vermont Chapter of the American Civil Liberties Union, standing, listens during Supreme Court arguments on Wednesday, June 22, 2011 in Montpelier, Vt. The Vermont Supreme Court heard arguments on an electronic privacy case that could help determine how much access police can have to a suspect's computer and other electronic devices. (AP Photo/Toby Talbot)
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Allen Gilbert, director of the Vermont Chapter of the American Civil Liberties Union, standing, listens …

MONTPELIER, Vt. (AP) — The Fourth Amendment to the U.S. Constitution protects citizens from unwarranted searches and seizures of their "persons, papers, houses and effects," but it doesn't mention computers, iPads, smartphones and other electronic devices.

The state Supreme Court was faced Wednesday with the challenge of adapting the federal and state constitutions to the digital age in an electronic privacy case.

The state complained that a lower court judge placed too many restrictions on a search warrant Burlington police got for a man's computer and other devices as they investigated allegations of identity theft. It's a case being watched closely by national groups devoted to studying how the law should be applied in cyberspace.

"Our personal computers contain an unprecedented amount of highly sensitive personal information like medical histories, financial status, political affiliation and more," said Hanni Fakhoury, a staff attorney with the San Francisco-based Electronic Frontier Foundation, which works to protect people's rights regardless of technology. "If the state of Vermont has its way, all of this data can be collected and retained without any privacy protections. It's completely reasonable for a judge to act to protect privacy in this case."

Andrew Strauss, a deputy state's attorney in Chittenden County who argued the state's case before the five justices, said the state agrees that judges can impose some restrictions on search warrants. But he argued that when Judge Michael Kupersmith granted the search warrant requested in December in the identity theft case by Detective Michael Warren, he went too far.

The judge overstepped "by detailing how the search was to be conducted, along the lines of saying, 'Yes, you have enough evidence to justify a search of this house, but you can only search it in a certain way,'" Strauss said in an interview.

That was as it should be, said Jay Rorty, a California-based lawyer with the American Civil Liberties Union who argued in the Vermont case on Wednesday.

Warrants must be narrow in focus, limited to the specific crime police have in mind if the Fourth Amendment is to maintain its historic role as a bulwark against wide-open government intrusion into private lives, Rorty said.

"Anything beyond that specific offense should remain private and not subject to future law enforcement investigation," he said.

What if a search for evidence of identity theft turns up material related to a terrorist plot? Rorty said federal courts have laid out a compromise position in which law enforcement can apply to a court for a separate warrant.

Police had targeted a Burlington man as a suspect in the identity theft case. They believed he had used a computer to apply for credit cards in the name of an elderly New York state man.

Police asked the court's permission to seize "any computers or electronic media," including hard disks, compact disks, cell phones, mobile devices and removable storage devices such as thumb drives or flash drives.

The judge granted the warrant but attached conditions based on those issued in another case by a federal appeals court in California. Police could seize the items, but they had to be examined by an independent investigator who could turn over to the detectives only material related to the identity theft allegations.

The Burlington man who was the target of the warrant still has not been charged.

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