University of San Diego law professor Donald A. Dripps has an important new article in the Journal of Criminal Law and Criminology: “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure (103 J. Crim. L. & Criminology 49 (2013)). (H/T Mike Ramsey at The Originalism Blog). In it, he presents a powerful case that the seizure of private papers by government authorities for later perusal was considered a distinct and equal injustice as that of issuing general (nonparticularized) warrants. As such, one’s papers merited much greater protections from seizures that one’s “effects” or personal property. Indeed the “seizure” of one’s papers for later perusal to find incriminating information therein had the hallmarks of the evils of general warrants. He then connects this historical analysis with contemporary debates over the seizure of digital information. Here is a bit from the Introduction:

This Article argues that the history of seizing “papers” explains why the Amendment uses the term and offers the opportunity to ground special Fourth Amendment rules for digital evidence…. The Fourth Amendment refers to “papers” because the Founders understood the seizure of papers to be an outrageous abuse distinct from general warrants. The English courts and resolutions of the House of Commons condemned both abuses distinctly. The controversy was closely followed in America, where colonial Whigs sympathized with, and even idolized, John Wilkes, who successfully sued for damages for the seizure of his papers. America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute until the Civil War. The one Founding-era attempt to authorize seizing papers by statute was condemned as contrary to common law and natural right and never passed into law. Although Congress authorized seizing papers to enforce the revenue laws during the Civil War, it took until the 1880s for a challenge to reach the Supreme Court. That challenge was Boyd, which remained the law for another ninety years. Boyd rightly held that “papers” deserve more constitutional protection than “effects.” Special protection does not, however, ineluctably mean absolute immunity. The seizures that aroused outrage in the 1760s were indiscriminate, expropriating, unregulated, and inquisitorial. A regulated, discriminate, and nonrivalrous process for inspecting documents is different. Indeed, the prohibition on seizing papers was never absolute. Stolen and contraband papers could be seized under warrant, and perhaps papers of only evidentiary value could be seized incident to arrest. Moreover, if the Fourth Amendment, as Story said, is “little more than the affirmance of a great constitutional doctrine of the common law,” the Amendment incorporates by reference “a great constitutional doctrine” that was dynamic on its own terms, subject to judicial evolution and statutory modification. The supposed choice between no special protection for private papers and complete immunity for private papers is a false dilemma.

This is from the middle:

Current doctrine seems premised on a supposed dilemma. If private documents do not enjoy heightened constitutional status, and the government can show probable cause to believe that one document among thousands is either contraband or evidence, the police may scan the entire lot. In some cases their suspicions will prove baseless and they will have searched thousands of innocent but private entries for no good purpose. If, on the other hand, documents do deserve heightened constitutional protection, the government has no right to pick through the haystack in search of the needle, and documentary evidence of serious crimes would, as a practical matter, become off-limits to law enforcement…. The pooling problem is not about either the lawfulness of the object of search or the particularity of a warrant. In the 1760s, libels could at least theoretically be seized; the problem was the need to look through reams of innocent private papers to find the contraband ones.

And this from the conclusion:

There are difficult questions about both the substance of structural safeguards on digital searches, and about the institutions best equipped to formulate those safeguards. All I have suggested here is that safeguards that greatly reduce the special evils that attended the seizures of papers in the 1760s might make digital-age Fourth Amendment law simultaneously more legitimate and more functional. If that turns out to be true, the time may come when structuring digital searches is not just best practice, but also the only practice that is not “unreasonable.”

The history is fascinating, and obviously germane to current cases and controversies. Beyond its claims about the Fourth Amendment, I had a number of reactions.

First, the depth, quality and balance of Professor Dripps’s originalist research is what makes the article so persuasive. Still, I find that it is common to be impressed with originalist (and other) arguments with which one is already sympathetic. So the longer term test of any originalist analysis is how it stands up under critical scrutiny by other scholars who are knowledgeable on the subject. “It sounds right to me” is not enough to make one sure that it is right. Having said this, it sounded right to me. For sure it is an excellent start. If you read this, you will learn things about the Fourth Amendment that are really good to know. The article’s emphasis that the first federal statute altering the common law bar on seizure of private papers (that were not themselves contraband) for later perusal was a revenue act of 1863 reminded me of my co-blogger Will Baude’s superb article on the takings power, in which he shows that the federal government first exercised the power of eminent domain within a state (i.e. not in a territory or other federal jurisdiction) only after the Civil War. (See William Baude, Rethinking the Federal Eminent Domain Power, 122 YALE L.J. 1738 (2013).) This was news to me. We tend to attribute current longstanding practices to “tradition” extending back to the Founding, though they developed long after. Indeed, I have suggested we attribute certain constitutional doctrines to the New Deal Court that were actually Warren Court innovations, such as modern hypothetical “rational basis” scrutiny. (See my essay, Judicial Engagement Through the Lens of Lee Optical , 19 Geo. Mason L. Rev. 845-860 (2012).) If correct, this analysis reinforces the point I made back in 1999 that “originalism” does not invariably lead to “conservative” results. Indeed, some conservative originalists reach for precedent to escape the original meaning of the text. This originalist analysis has a number of values. Of course, if one is an originalist scholar, judge, or justice, it would bear importantly on one’s opinion of the meaning of the Fourth Amendment. But apart from that, the analysis is also quite valuable just to understand the composition of the text; and it opens a conceptual position that may differ from, and improve upon, existing doctrine. In the latter case, it is so much the better that it might move doctrine in the direction of original meaning. Even where doctrine diverges markedly from original meaning, this meaning can still exert a “gravitational force” on doctrine if judges perceive that we have deviated too far from the original scheme — especially if they can see how the original scheme still makes sense under contemporary conditions. We saw this both in Chief Justice Roberts’s opinion, and that of the dissenters, in NFIB v. Sebelius, and in Justice Alito’s nonoriginalist “substantive due process” opinion in McDonald v. Chicago.

Professor Dripps’s paper is both fascinating and timely. I highly recommend it.

UPDATE: I neglected to mention that Professor Dripps cites with approval co-blogger Orin Kerr’s article, Digital Evidence and the New Criminal Procedure, 105 COLUM. L. REV. 279 (2005).