A different perspective: essentially, that the Fourth Amendment should treat computers in a way that rejects a distinction between the physical storage medium and its contents. This is a departure from how most other writers have approached the subject: Josh Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011):
Computers can be evidence. Consequently, criminal investigators often need to seize computers and examine them. Computer forensic examination is now a common tool in all types of criminal investigations. The FBI, alone, has more than two hundred full-time computer forensic examiners. Yet, computer forensic examination poses a recurring Fourth Amendment problem. Computer storage media can reveal facts relevant to an investigation, but they can also reveal irrelevant facts that can be embarrassing or inform investigators for the first time about a new crime.
To reveal the relevant while shielding the irrelevant, most courts employ a special fact perspective—that is, a special way to characterize the operative facts. They conceive of storage media as containers of subcontainers, with each subcontainer corresponding to a directory, a file, or something smaller. From this “subcontainer perspective,” existing search and seizure law governs forensic examination in the same way it governs an officer searching a home. Each subcontainer is a separate “thing” under the Fourth Amendment. The Fourth Amendment limits an examiner’s authority to seize that subcontainer in the same way it limits an officer’s authority to seize a murder weapon from a home.
The subcontainer perspective transforms search and seizure law. Search and seizure law is heavily premised on physical facts: it governs what places officers can enter and what things they can seize, but not what information they may learn. The subcontainer perspective rejects that premise. Rejecting that premise causes search and seizure rules to cease to make sense. Some physical rules cannot be applied to information at all, others might apply in multiple contradictory ways, and others, when applied, counter-intuitively produce results that barely restrict forensic examination at all. Out of the resulting mess, many have called for departures from search and seizure law, such as requiring magistrate judges to approve how a computer will be “searched” or abolishing plain view. Far from permitting a straightforward application of old law to new facts, the subcontainer perspective leads to the invention of new rules, based on new policy choices.
Rather than use the subcontainer perspective, a better choice is to adopt a perspective, similar to one that the California Supreme Court recently used, that views storage media as physical evidence. Under this perspective, a hard drive is an object, not a place. …