I studied just enough criminal law to graduate from law school and pass two bar exams, so the law of search warrants is a bit exotic for me: an area where strange beasts lurk. This year’s discussions at the Sedona Conference annual meeting and Georgetown Advanced eDiscovery Institute were the most I’d thought about search warrants in years. The themes were familiar however: how do we analogize new forms of evidence to familiar ones? The answer is, use your imagination, don’t let the newness freak you out, and you can get there from here.

Pretty much every area of the common law in the United States has barely made it to the age of the automobile. Fourth Amendment case law is no different. That isn’t to say we have no case law on search warrants executed for digital technology. Far from it, one Judge at said that few of the search warrants he sees anymore actually look for something tangible. But even the judges who are comfortable in this area still struggle with how to apply the doctrine of “unreasonable search and seizure” to the vast sea of social media information and the dense knot of personal, professional and public information available on portable devices.

As with discovery requests, judges expect specificity with warrants. One judge said “I’m not going to tell you what to put in your warrant, just that I won’t sign one that doesn’t comply with the Fourth Amendment.” Practically speaking, this means that a warrant should not say “all social media,” and whether it can say “all Facebook data,” requires an argument about scope. Search warrants are by their nature invasive, so in the case of a laptop or personal device, how much intrusion is too much? If you’re looking for financial records, can you look at someone’s personal photos? (Probably). If law enforcement has a warrant to search a file cabinet, they can still look in the manila folder marked “photos” for the tax records. But a warrant to search a file cabinet at the office doesn’t necessary extend to the bathroom medicine cabinet at home. Does a mobile device that contains both personal and professional information mean the person now has their filing cabinet in the bathroom? The judges’ favorite answer is “it depends.” Another judge also pointed out that, if one is looking for an elephant, the warrant permits you to search every place an elephant might be found, but you can’t use it as a license to go snooping in cookie tins. It is hard to say in the age of multi-gigabyte personal devices what is a digital “cookie tin,” but parties litigating search warrants should understand which parts of a defendant’s devices and personal data sources ranging from Dropbox to Twitter are linked together and how the defendant uses each of them.

The Georgetown panelists, judges and others, also discussed new technology and other areas of law such the Wiretap Act and the Fifth Amendment privilege against self-incrimination. For example, Google Glass permits non-consensual recording of others by the wearer. Is that a wiretap? One judge says, “No. You look exceedingly unattractive, but you aren’t intercepting a wire communication, so there is no crime.” Where parties have to provide a password to locked or encrypted media, does forcing a person to provide their password trigger Fifth Amendment protection? Generally the answer is no, because it is analogous to surrender the physical key to safe deposit box. Where biometric data (voice print, finger print etc) is necessary to access or search, the judges seem undecided as to whether a fingerprint lock on an iPhone is more like “testimony” thus invoking the privilege, or more like a key (or a hair sample).

This isn’t going to get any easier, but for now the consensus seems to be that the laws themselves still do the job. The concepts of “reasonable” and “probable cause” like “relevance” and “burden” in the civil context are broad and not technology specific. However, the rapid evolution of the law does place a greater burden on judges and lawyers to truly understand the technology and how it used in order to make accurate analogies and sound arguments.