When police officers have probable cause to search a suspect’s home, they can request an electronic warrant from a magistrate or judge. Several states have adopted this practice to make the process more efficient and reduce the risk that a suspect will be tipped off about the search and flee.

However, ewarrants raise new concerns about privacy and the Fourth Amendment. In this paper, the ACLU’s Surveillance & Cybersecurity Project examines these new challenges and sets forth legal arguments in support of robust rules for obtaining search warrants in digital cases.

A key challenge is that unlike the physical location of evidence, digital information can be moved and destroyed quickly and without leaving the computer. As a result, search warrants for digital evidence must often be more specific than those issued in the context of a physical case. For example, overly broad language (such as authorization to seize “all records” or “all computers”) is likely to be ruled invalid. Instead, the warrant should describe the specific files to be seized and identify the crime(s) for which the evidence is being sought.

In addition, a special set of legal challenges arises when a warrant is used to obtain the contents of an electronic communication service provider’s database. In this situation, a warrant should only be issued after the magistrate or judge has found that there is probable cause to believe that a criminal offense was committed and that evidence of the offense will be located in the database. Moreover, the warrant should require that the governmental entity provide the subscriber notice of the search and the disclosure, except in extraordinary circumstances. electronic warrants