Search Warrants for Digital Speech

Effy Folberg
This Article explores how the Fourth Amendment regulates digital search warrants when the government searches for our conversations. In doing so, it examines the most popular approaches to search warrant regulation: search protocols and use restrictions. These approaches give rise to a previously unexplored trilemma that is created when the Fourth Amendment limits how the government uses data and searches for it. This Digital Disclosure Trilemma means that if the Fourth Amendment is interpreted to limit the scope of useable evidence or how the government conducts a search, such limitations will conflict with the government’s Brady obligation to conduct exhaustive searches of data, discovery obligations, and the obligation not to distribute child pornography. These conflicts will either undermine the purpose of the search warrant limitation or cripple police investigations.
Instead, this Article argues for a First Amendment approach to regulate search warrants. Under this approach, the government is required to make an ex ante commitment to describing the content or metadata parameters that the sought speech would meet. But there would be three important limits. First, the Article argues that the foregone conclusion doctrine derived from the Fifth Amendment is a First Amendment doctrine limiting the breadth of a search warrant. Second, any overseized materials would be precluded by a use restriction. Third, the Article argues that the First Amendment provides a constitutional basis for independent search executors to provide for taint teams to solve the Digital Disclosure Trilemma and crimes involving a continuous course of conduct. Finally, the Article explores when digital speech, according to current precedent, is protected by this model, and addresses how a First Amendment theory to the Fourth Amendment could revolutionize litigation over the good-faith exception.
Recommended citation: Effy Folberg, Search Warrants for Digital Speech22 Yale J.L. & Tech. 318 (2020).