Copyright 1996 Mark Eckenwiler. Reprinted by permission. A version of this article first appeared in The American Lawyer, May 1996 "Litigation for the 90's" supplement, on pages 42-44.
Your client's telephone call comes as an unpleasant -- and urgent -- surprise. Federal law enforcement has shown up on the premises brandishing papers purporting to authorize the seizure of various items. Worse, the agents have implied that your client's computers and stored data are fair game, and may be carted away en masse. What's your first move?
Step One: advise the client to limit discussions with the agents (or those accompanying them) to ascertaining the scope of the order. Just as important, though, is the need for the client's employees to watch what they say. In one case where our firm executed a civil writ of seizure against counterfeit goods, the defendant's employees blithely conversed with each other in a foreign language. Unfortunately for the defendant, one member of our party understood every word of the conversation.
Step Two is equally simple: run, don't walk, to your client's premises. It's impossible to assess the situation without being there in person. Being on the scene, you can read the papers for yourself and, more importantly, it gives you an opportunity to talk to (and size up) the agents. Depending on the type of seizure (criminal or civil) and the substance of the authorizing papers, you may be able to talk your client's unannounced guests into narrowing the scope of their seizure.
When federal agents show up with a search warrant, you know they're not leaving empty-handed. Your job is to persuade them to take away only data files, not hardware, and even then to take only the files described with particularity in the warrant. Under these circumstances, the voluminous Federal Guidelines for Searching and Seizing Computers -- issued by the Department of Justice in 1994 -- may provide you with valuable leverage.
The Guidelines draw an important distinction between, on one hand, computers constituting the fruits (e.g., stolen property) or instrumentality of a crime, and, on the other hand, computers used to store "mere evidence" in digital form. In the latter case, the Guidelines warn against seizing hardware when seizure of the data alone would serve the same investigatory purpose.
At the same time, of course, you'd prefer not to let the agents make a wholesale copy of your client's data records even if it's practical to do so. Under the Fourth Amendment, warrants must "particularly describ[e] the ... things to be seized," but it's an unfortunate fact that courts have regularly issued warrants for the seizure of any and all digital records without setting limits as to the subject matter. (One hopes that courts would hesitate to issue warrants for "all pieces of paper containing writing or other expressive symbols.")
The Guidelines warn against such general warrants except in cases where the alleged criminality is widespread and the materials voluminous. Moreover, they advise agents to bring technical experts to assist in the seizure of computers and data, a fact which you may turn to your client's advantage. Especially in cases where the data records sought can be readily identified and distinguished from other materials, consider inviting the agents' expert to conduct the seizure of files on-site. This process may be time-consuming, but it's infinitely preferable to having the client's hard drive and other magnetic media carried out the door, especially if the storage device contains files needed in your client's daily business.
Even if the agents insist on seizing hardware, remind them of the "independent component" doctrine set out in the Guidelines. In brief, this rule commands agents "to seize only those pieces of equipment necessary for basic input/output," and not every piece of equipment (including printers, audio speakers, and other peripheral devices) physically connected to the machine. Depending on the circumstances, the agents may be content with a single PC instead of your client's entire local-area network.
If the amount of seized information is vast, you should also determine what steps the government intends to take in reviewing the materials. As the Guidelines recognize, in cases where agents have seized vast quantities of non-relevant paper documents that are "intermingled" with papers relevant to an investigation, at least two federal circuits have required special procedures to prevent the agents from rummaging at will through all the files. If it hasn't already happened, an emergency call to the issuing magistrate may be in order, especially when your client's system contains attorney-client communications or other privileged materials.
In addition, if the agents brought along an expert, suggest that the expert make a copy of essential business files for your client to retain. (Given the threat of irreversible file deletion, the agents are unlikely to let your client perform this task.) If the materials aren't obviously contraband (e.g., stolen data), there's no reason your client shouldn't be allowed to keep a copy for continued use.
Even when law enforcement agents have a valid search warrant, their actions are constrained by a select group of federal statutes. If your client's business involves the dissemination of public information -- as a broadcaster, publisher, or author, for example -- the Privacy Protection Act (42 U.S.C. secs. 2000aa et seq.) imposes additional limits on what may be seized pursuant to a criminal investigation. A legislative response to the Supreme Court's 1978 decision in Zurcher v. The Stanford Daily (where the Court upheld the search of a newspaper's files for evidence of a third party's criminal activity), the PPA makes it unlawful in most cases to seize, or even search for, a publisher's work product materials. There's an exception for cases where the publisher itself is suspected of the crime; absent that circumstance or life-threatening exigency, however, the seizure is unlawful.
It's worth trying to establish whether your client is the suspect or a concededly innocent possessor of relevant evidence, especially if the search is being conducted by state officers. The PPA provides for a civil cause of action against violators, and in some cases the officers themselves may be held individually liable for statutory damages. The prospect of liability might give the executing officers pause -- and give you and your client some breathing room to negotiate with their superiors. (In this regard, note that under several Department of Justice memos issued in 1993, all applications for warrants under the Privacy Protection Act must be approved by a Deputy Assistant Attorney General of the Criminal Division or the supervising DOJ attorney.)
The recent Fifth Circuit case of Steve Jackson Games, Inc. v. United States Secret Service (1994) illustrates the uses of the PPA in the computer-seizure context. In that case, Secret Service agents seized the entire computer system (including stored business records) of Steve Jackson Games, Inc., a Texas-based publisher of books, magazines, and role-playing games. Because an employee, and not the company itself, was suspected of wrongdoing, and because there was no evidence that the company's facilities were used in connection with the offense under investigation, the District Court later awarded Steve Jackson Games over $50,000 in damages under the PPA. Even putting aside the wrongfulness of the initial seizure, the Court noted, "there was no valid reason why all information seized could not have been duplicated and returned ... within a period of hours...."
The Steve Jackson Games case involved a second important limitation on computer seizures: the "stored communications" provisions of the 1986 Electronic Communications Privacy Act, 18 U.S.C. secs. 2701 et seq. The company's computer also served as a public BBS, providing electronic mail service to members of the public; equally importantly, the Secret Service knew this prior to executing the search. Concluding that the Secret Service's wholesale seizure of the customers' stored electronic mail (which, along with the rest of the system, was held for over four months) failed to comply with ECPA's requirements, the Court awarded additional damages for this privacy violation. In doing so, the Court harshly criticized the Service for knowingly seizing these communications without first seeking specific judicial authorization.
What do these cases mean when the agents are standing in front of you waiting to execute their search? Notify, notify, notify. If your client is a "publisher" by any stretch of the imagination -- Steve Jackson Games was hardly a traditional media outlet -- warn the supervising agent that he's treading on thin ice. And if the computer in question contains stored electronic communications, put him on notice that the ECPA limits what he can seize.
Of course, the federal officer at your client's door may not be pursuing a criminal investigation. Rather, you may be the unlucky recipient of an ex parte seizure order under federal copyright or trademark law, in which case the marshals will likely be accompanied by plaintiff's counsel. Under these circumstances, you'll need to follow a different script. (For instance, it makes no sense in infringement cases to ask to retain copies of the allegedly infringing data files.)
At the outset, consider making an emergency call to the issuing court to argue for a stay. If you commit to the court that your client will not destroy evidence, you may get a hearing. Find out in advance whether the plaintiff posted a bond, and for how much; if the amount is low, that's an additional point to raise in favor of a stay.
In addition, ask the marshals and plaintiff's counsel for copies of all the supporting papers (petitions, motions, complaint, affidavits) submitted in support of the writ. Unlike the seizure order itself, these papers explain the details of your client's alleged misconduct. Also, find out if the court has sealed the case or entered a protective order. In many seizure cases such protection is appropriate; you may have legitimate objections if confidential records fall within the scope of the order and no seal or protective order is in place.
Next, examine the seizure order -- especially the list of items to be seized -- carefully. Is it issued under trademark or copyright law? The difference is important. The trademark statute (15 U.S.C. sec. 1116) permits seizure of counterfeit goods and marks, "the means of making such marks, and records documenting the manufacture, sale, or receipt" of the challenged goods. By contrast, 17 U.S.C. sec. 503(a) (relating to copyright) permits seizure only of the unlawful copies and "articles by means of which such copies ... may be reproduced."
In short: a copyright-based seizure cannot encompass your client's computerized business records. If the order purports to authorize such a seizure, explain calmly to plaintiff's counsel that he'll regret trying to enforce it (see below).
Moreover, ensure that the order doesn't overreach in other respects. In one recent case involving the Church of Scientology's celebrated (and aggressive) enforcement efforts -- Religious Technology Center v. Netcom On-Line Communication Services -- the original writ of seizure permitted the plaintiff to seize any copy of its assertedly copyrighted works. As the District Court later noted in vacating the writ, this overbroad language encompassed even legally owned copies of the works.
The Netcom case is especially instructive because it apparently involved the wholesale copying of one defendant's computer hard drive. The Court endorsed the practice of using plaintiff's technical experts to assist the marshals in identifying specific items to be seized, warning at the same time against vague and "overly subjective" criteria for seizure.
It is interesting to note that the writ in Netcom expressly excluded computer hardware from its reach. As noted above, the trademark and copyright statutes both permit the seizure of devices used to create infringing items. Some courts have refused to allow seizure of such devices where the device has substantial non-infringing uses, an issue that becomes especially pointed in the case of computers used to store and reproduce unauthorized copies.
Under the circumstances in Netcom, the District Court explicitly rejected plaintiffs' later motion to seize the defendant's computer and other equipment, expressing a variety of concerns (including some based on First Amendment principles). And in a nearly identical case pitting the Scientologists against a different critic -- Religious Technology Center v. Lerma, 908 F. Supp. 1353 (E.D. Va. 1995) -- the District Court vacated its own writ of seizure and ordered the return of the defendant's computer, noting that the plaintiff had thereby acquired confidential computer files with little or no relevance to the allegations of copyright infringement.
But what good does this kind of judicial Monday morning quarterbacking do you when you're face to face with the marshals and plaintiff's counsel? Maybe plenty, if opposing counsel is wary of being sued personally for improper seizure.
On February 14, the Sixth Circuit sent a valentine to any attorney trying to stare down a writ of seizure. In Vector Research v. Howard & Howard Attorneys P.C., the Court reinstated Bivens claims for civil rights violations brought against several attorneys for conducting an ex parte copyright seizure later found to be invalid. (The writ was vacated in part because it authorized the seizure of business records providing evidence of -- but not themselves constituting -- the alleged infringement. See supra.)
The Vector Research decision is doubly bad news for lawyers thinking about a writ of seizure in a borderline case. The Sixth Circuit held that such attorneys may be deemed "federal agents" acting under color of government authority when they act (as they must) in concert with federal marshals. More importantly, the Court went on to rule that although public officials may invoke qualified immunity against Bivens claims, a private attorney defendant is entitled to no such immunity.
As a result, it behooves you (and well serves your client) to look for defects of scope and clarity in the writ of seizure presented to your client. Pointing out these flaws to opposing counsel -- and dwelling on the ramifications of an improper seizure based on them -- may earn you valuable concessions (such as allowing your client to keep his hardware).
Size up the marshals too. In civil cases, they probably won't be accompanied by a government technical expert. To the extent the marshals aren't technically savvy, you may be able to raise valuable doubts about the "seizability" of an item. Remember that they -- and not plaintiff's counsel -- are ultimately in charge. Impress upon them your willingness to cooperate, but also make clear your expertise (and your insistence that they follow the letter of the law).
Whatever the circumstances, you should take two other steps. First, supervise the handling and removal of any hardware, and assist to the extent necessary to prevent damage. It's not your job to encourage the seizure, but once it's a foregone conclusion, it makes no sense to invite harm to your client's property. And finally, demand a detailed inventory of the materials seized. There's no time like now to start laying the groundwork for