Here’s the problem. Imagine that the police believe that there is evidence of crime on a suspect’s computer, but they lack probable cause to obtain a warrant to search it. The police ask the suspect if he will consent to allow the police to search the computer for evidence. The suspect agrees, and gives the police his computer to be searched. A few days later, the suspect talks to an attorney and the attorney advises the suspect to revoke his consent and demand the return of the property. The lawyer (or the suspect) calls the police and withdraws consent to search the computer.
But here’s the twist. It turns out that the first step a computer forensic analyst takes when seeking to retrieve evidence from a hard drive is to create a “bitstream copy” or “image” of the computer hard drive. The “image” is an exact copy of the hard drive that copies every one and zero on the drive. It is created for reasons of evidentiary integrity; searching a computer drive can alter the data it contains, so analysts copy the original and do all of the analysis on the image copy. After the drive has been imaged, there are two copies of the data, not one: one copy of data on the defendant’s property and another copy on the government’s machine.
Now, back to our hypothetical. It turns out that a suspect often withdraws his consent after the computer has been imaged, but before government has begun to search the image. (This is common because imaging can be done in a few hours, but most government forensic labs have long waiting lists for the actual analysis.) So here’s the big question: When the suspect withdraws his consent, does the withdrawal of consent also apply to the image? Can the police search the imaged copy, or will searching the imaged copy without a warrant violate the Fourth Amendment? In doctrinal terms, does a defendant retain a legitimate expectation of privacy in the image, and if so, does his common authority to regulate consent to search the original apply equally or differently to the copy?
My opinion on the matter (given my understanding of the law) is that the image made of the drive could be retained by the police – after all, you would hardly expect the police to give back a picture they took of a suspect if that suspect was later released. That’s my gut feeling on the matter, anyway.
If you disagree, or if you just have additional thoughts – please feel free to comment!