The latest dispute arising from last week’s search of the offices and home of Michael Cohen, President Donald Trump’s personal lawyer, concerns who gets to review the thousands of files the FBI seized.
Trump and Cohen want their lawyers to have first crack at the evidence; the government says it should get to review the materials itself. We at the American Civil Liberties Union, which supports neither party, believe U.S. District Judge Kimba Wood should appoint a neutral “special master” to review the files.
Only such a process can ensure that the government gets access to what it’s authorized to see — evidence of nonprivileged criminal conduct covered by warrants — and doesn’t get access to what it should not see. While this particular case implicates the president, its broader issues are increasingly salient in the digital age. Otherwise-lawful searches can lead to seizures of computers and smartphones that contain terabytes of very personal data, detailing the most intimate elements of private life. This case is about more than the attorney-client privilege; it goes to the heart of how privacy is to be protected in the digital age.
At Monday’s hearing, a federal prosecutor explained that while the Cohen searches yielded 10 boxes of physical files, the “real volume” of material would come from files stored digitally on more than 12 electronic devices, including smartphones and computer hard drives. The vast majority of the information on those devices is likely to have no connection to the evidence for which the search warrant was issued, and some of it may be covered by the attorney-client privilege. The question, then, is how to separate what the government can lawfully see from what is none of its business.
Whether physical or digital, a search must always be circumscribed by its specific purpose. In the material world, physical characteristics help ensure that the government adheres to that purpose. If the police have a warrant to search for a rifle, they can open a guitar case that might contain the weapon but can’t open spice boxes or search through folders of documents.
On a computer, however, all the evidence is in the same digital form. It is extraordinarily challenging to make sure the search is confined to its authorized limits, which exponentially increases the risk that the government, in looking for what it does have good reason to see, will end up seeing much that it should not.
That’s why Trump and Cohen want their lawyers to have first dibs. The government responds that it has a “taint team” within the U.S. attorney’s office — government lawyers who won’t participate in the prosecution — who can review the records and pass on to the prosecutors and investigators only the information that is authorized by the search warrant. Neither choice is ideal. Suspects have a vested interest in obscuring incriminating evidence, and the government has an incentive to gather up everything it can. The government claims that the U.S. attorney’s office can be trusted to handle the seized data responsibly and that it can perform searches faster than a special master. But how to manage searches of digital information, like any other evidence, is not a matter of expediency or any party’s good faith — it’s a matter of ensuring that the government complies with the Constitution.
In situations such as this, the ACLU believes that courts should appoint special masters — independent, nongovernmental parties — to search seized media to separate the appropriately searchable from what should remain private. A special master, reporting to the court, will review the records with no incentive other than to get it right. This person would filter out material, passing along to the government only the information covered by the warrant and otherwise preserving privacy and privilege. And lawyers for all sides could then be heard on whether the special master had properly drawn those bounds.
Trump and his lawyer are not above the law, but they aren’t below it, either. They’re entitled to the same protections as anyone else. And all of us deserve more than what the government has been proposing in this case.
Brett Max Kaufman is a staff attorney at the American Civil Liberties Union, where he works on issues related to national security, surveillance, privacy and technology. He wrote this for the Washington Post.