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Cline: Problem with that is it converts any search of a computer into a general search. Piersol: Plain view, there they were going thru graphic images. Clearer to agent looking at graphic images. Cline: To extent govt sharing arg with us they're relying on plain view.
Piersol: no doubt about that [govt relying on plain view] Gould: under sneak and peek, they get a bunch of files, have to look closely, and they see evidence of another crime, of a serial killer. Are you saying they can't stop killer form proceeding to next victim.
Cline: Concurrence would say they're out of luck. Gould; Govt can't stop serial killer? Cline: other things might kick in; exigent circumstances. As soon as you see something not in scope, you stop, and go get a warrant. [Technically I think they changed minimization procedure]
Ashley Gorski is now up, arguing for ACLU an EFF. Application of plain view presents serious fourth amendment problems. Searches conducted on relaxed standards of particularity and probable cause. To ensure compliance w/4A should prohibit using non-FI obtained pursuant to FISA.
Gould: Serial killer on the prowl. [Thing that should be noted is a serial killer who DID meet FI standard would fit terrorism standard] Gorsk: Could rely on exigent circumstances to use in limited circumstances.
Piersol: If trial court had info avail so it could decide if plain view applied on case by case. CDT didn't do that. Gorski:En banc said plain view problems when it applies to electronic devices. In this context, clear rules important. Urge more general use restriction.
Gorksi: There must be limits to ensure that 4A not a dead letter in this context. Jacobson--a seizure that may be reasonable at outset may become unreasonable. Piersol: Movement of tech. Gorski: movement of tech important in this kind of situation.
Gorski: Computers function as banks and more. As a result, more sensitive for 4A particularity. If all of those files are deemed to be plain view, risk compounded here, bc of FISA, relaxed standards. Altho govt hasnt' described how they found child porn.
Gorski: Govt asserted this would result in rebuilding wall. Not correct. Use restriction on non-FI in no way affects govt's ability to communicate FI.
Anthony Lewis for US. "All matter of child porn organized w/in personal files." [Shorter govt: porn porn porn] Defendant can't show any error, let alone error that was plain or clear. FISA uses same standard but as to different facts.
Lewis: what FISA must be shown up are foreign power or agent of. On back end are minimization procedures, some imposed by court. Appropriate dissemation. Not like anything in Rule 41 context. [Key issue here: the FISC actually DOES do individualized modification of MPs]
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