Orin Kerr writes:
In a recent article, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), I pointed out a newly emerging practice of some federal magistrate judges in computer search cases. When the government applies for warrants to search for and seize computers, some judges are rejecting the applications — even when probable cause exists and the warrants are particular — unless the government agrees to follow certain restrictions, crafted by the magistrate judge, on how the electronic search stage will be conducted. That new practice received an enthusiastic endorsement when the Ninth Circuit handed down its initial en banc opinion in United States v. Comprehensive Drug Testing (CDT), which seemed to invite (if not require) magistrate judges to impose a series of fairly strict limitations on computer searches. The Ninth Circuit backed down in CDT, though, when the Court amended the opinion and moved those limitations from the controlling en banc opinion to the concurring opinion of Judge Kozinski. The Ninth Circuit’s backing down defused the problem in the short-run, but it ensured that the lawfulness of the ex ante restrictions — and which restrictions can be imposed and when, if any are permitted — would be fought at a later date.
It didn’t take long, it seems. Recently, Magistrate Judge James Donohue in Seattle unsealed an opinion he handed down on February 11 denying a warrant application to search the computers of a suspect, Edward Cunnius.
Read more on The Volokh Conspiracy.