Magnus Hagdorn

The government can prosecute and imprison people for crimes based on evidence obtained from their computers—even evidence retained for years that was outside the scope of an original probable-cause search warrant, a US federal appeals court has said in a 100-page opinion paired with a blistering dissent.

The 2nd US Circuit Court of Appeals ruled that there was no constitutional violation because the authorities acted in good faith when they initially obtained a search warrant, held on to the files for years, and built a case unrelated to the original search.

But the appeals court said the authorities' behavior was acceptable and didn't reach the constitutional question of whether the Fourth Amendment rights were breached for accountant Stavros Ganias, who was sentenced to two years in prison.

He challenges his conviction on the ground that the Government violated his Fourth Amendment rights when, after lawfully copying three of his hard drives for off-site review pursuant to a 2003 search warrant, it retained these full forensic copies or mirrors , which included data both responsive and non-responsive to the 2003 warrant, while its investigation continued, and ultimately searched the non-responsive data pursuant to a second warrant in 2006.

But the government asked for the full appeals court to rehear the case en banc, and the court agreed to do so with all 13 judges.

But the majority concluded that the law did not allow "officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on a computer for use in future criminal proceedings."

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