The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Big news in the field of computer search and seizure today: The Second Circuit has granted rehearing in the full case of United States v. Ganias, the blockbuster case from last year on access to overseized files. I blogged about Ganias here and here when it came down, and I have been finishing up an article draft—which I was planning to post on SSRN later in the week—that focuses extensively on how courts should interpret and build on Ganias. Time to rewrite the draft, as the entire case will now go before the en banc court now for a September argument.
Notably, the DOJ's petition for rehearing in the case was limited to the remedy question of whether the exclusionary rule applied. In contrast, the Second Circuit granted rehearing on the whole case—4th Amendment violation and remedy. From the order:
The parties are instructed to brief all issues relevant to the appeal, including:
(1) Whether the Fourth Amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non‐responsive files, retained the cloned hard drives for some two‐and‐a‐half years, and then searched the non‐responsive files pursuant to a subsequently issued warrant; and
(2) Considering all relevant factors, whether the government agents in this case acted reasonably and in good faith such that the files obtained from the cloned hard drives should not be suppressed.
Briefing is not restricted to the issues and arguments presented to the original panel. We invite amicus curiae briefs from interested parties. Appellantʹs brief and appendix, and any amicus curiae briefs in support thereof, shall be filed by July 29,
I doubt I will have time to write an amicus brief in the case, although I think the answer to the first question should be "yes" for the reasons I'll make clear when I post my draft.
As always, stay tuned.