Digital Seizures: Why Wurie and Riley May Not Adequately Resolve Remote Destruction of Evidence

Digital Seizures: Why Wurie and Riley May Not Adequately Resolve Remote Destruction of Evidence

By Kevin Lammers*


Later this term, the Supreme Court will decide whether or not to grant certiorari in two cases involving the search of cell phones by law enforcement pursuant to the search-incident-to-arrest doctrine.[1]  The prevailing view amongst legal commentators is that the Court will grant certiorari in one of these cases to resolve whether, amongst other issues, these cell phone searches fall under the exigent circumstances exception to the Fourth Amendment’s warrant requirement.[2]  Because the Supreme Court has never applied this exception to the remote destruction of evidence—such as deleting iPhone data from another device—these cases will require the Justices to engage in a delicate balancing act between an individual’s right to the privacy of their cell phone’s contents and the necessity of law enforcement to preserve digital evidence.  The following discussion will illuminate one possible solution to that balancing act.


The issues in Wurie and Riley are particularly difficult to resolve because the exigent circumstances doctrine was created at a time when remote destruction of evidence was not possible.  Cloud computing technology (and the Internet in general) has introduced the possibility that digital evidence (e-mails, documents, text messages) might be removed from a computer without the suspect having access to that physical computer.  Seizure of the item containing the evidence—traditionally viewed as a less intrusive method for preserving evidence[3]—does not resolve the possibility that a suspect might destroy digital evidence remotely.  This is particularly problematic since law enforcement officers are increasingly relying on digital evidence to build their cases and investigate possible suspects.[4]

A variety of methods currently exist for deleting digital data from computers, tablets, and smartphones.  For example, Apple has given iPhone users the ability to erase information from their device in the event that they lose it.[5]  However, the First Circuit in Wurie argued rather convincingly that concerns about remote wiping of cell phones are overstated.  The court identified three common procedures that undermine the use of remote destruction of evidence as justification for a search: (1) turn the phone off (or remove the battery); (2) place the phone in a Faraday enclosure (which blocks wifi signals); and (3) immediately copy the cell phone’s contents onto another device.[6]  These same three procedures were also referenced by the defendant in Riley.[7]  Due to the level of intrusiveness of these three procedures, they are better understood as digital seizures rather than searches.  While these less-intrusive procedures undercut the rationale for a full-blown search justified by destruction of evidence, they do not address the destruction of files stored remotely.

In the case of more complex digital evidence, Microsoft’s latest version of Office utilizes “SkyDrive” to allow users to store and retrieve documents remotely.[8]  This type of remote deletion operates differently from the remote “wiping” of iPhone data.  Since the files on SkyDrive are stored remotely, digitally seizing a device with access to them does not prevent their destruction.  For example, if a law enforcement officer were to remove the battery of an iPad (or place it in a Faraday enclosure) with access to SkyDrive files, the SkyDrive user would still be able to completely erase those files by accessing them from another device.  Thus, even with the ability to digitally seize the contents of a physical device, the government can still argue that these searches are justified to identify what, if any, digital evidence a user has stored remotely.


Both the First Circuit in Wurie and the defendant in Riley have thus far neglected to address the problems posed by remote storage of digital evidence.  Since both cases involve the search of cell phones rather than personal computers or tablets, it is likely that the parties to those cases failed to consider destruction of digital evidence beyond remote wiping of data.  However, cell phones contain the same level of access to data on SkyDrive and Google Drive as traditional computers.  Because of this, the government’s argument that a warrantless search is necessary to prevent destruction of such data holds up against the three types of digital seizures referenced by the First Circuit and the defendant in Riley.  Since the remote storage of digital evidence is largely going unnoticed by the parties to these cases, there is a legitimate chance that the Supreme Court could create a rule for these types of searches that is not readily applicable to data on SkyDrive and Google Drive.  This problem illuminates why the Supreme Court should fashion a rule for digital searches and seizures that accounts for the possibility of destruction of evidence in any form or fashion, whether remote or local.

Such a result is foreshadowed by the Western District of Washington’s discussion of remotely-stored data in In re Edward Cunnius.[9]  It warned that digital devices are best viewed as “portals” under the Fourth Amendment, containing not only local files, but also all information stored remotely or “on the internet.”[10]  The Supreme Court should note that the types of seizures contemplated by the parties in Wurie and Riley fail to capture data retained within the portal of a digital device.  Similarly, the Ninth Circuit theorized about the possible implications of cloud computing on Fourth Amendment doctrine, albeit in dicta:

In the “cloud,” a user’s data, including the same kind of highly sensitive data one would have in “papers” at home, is held on remote servers rather than on the device itself.  The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box.  Notably, although the virtual “safe deposit box” does not itself cross the border, it may appear as a seamless part of the digital device when presented at the border.  With access to the cloud through forensic examination, a traveler’s cache is just a click away from the government.[11]

Because the petition in Riley and the First Circuit’s opinion in Wurie fail to address this technology as applied to digital seizures, there is a significant chance that the Supreme Court will not reach the issue—an issue with a potentially dramatic impact on the Fourth Amendment’s application to digital devices.


With an opportunity to consider remote destruction of digital evidence, the Supreme Court should take care to craft a rule that will be applicable to the next generation of digital instruments.  One commentator has suggested that the best solution is to fashion an objective test for courts to apply to exigent computer searches:

[An officer must testify to] specific and articulable facts, known to the officer at the time of the search, demonstrating that the specific cell phone was at risk of remote deletion of potential evidence.  Additionally, the officer must further testify that there were no preventative measures available to him at the time of the search which could secure any evidence potentially stored on the cell phone.[12]

As an example of a generally-applicable solution, the above test hints at the possibility that courts will likely become well-acquainted with not only the three types of digital seizures discussed by the Wurie Court, but other forms of digital seizure designed to halt the destruction of remotely-stored data.

Using the example of SkyDrive, Microsoft may be able to access files or halt the destruction of files stored on a user’s SkyDrive.  In fact, its Windows Live Services Agreement hints at this possibility, albeit with reference to traditional legal devices such as subpoenas.[13]  Without a court order, there could still be a requirement—under 18 U.S.C. § 2703—that Microsoft (or Google) actually preserve a user’s content suspected of having evidentiary value: “A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.”[14]  The authority to order a third-party to preserve digital content is particularly important because, according to one source, the recovery of deleted content on browser-based e-mail systems (such as Gmail) is a complex task at best.[15]  While this might be unnecessary when police have probable cause to believe a device contains digital evidence (where a telephonic warrant might suffice), there are circumstances where a temporary seizure could be justified based on something less than probable cause.[16]  Halting the destruction of digital information is not necessarily even a “seizure” of that data, which may be why 18 U.S.C. § 2703(f) has never been subjected to a Fourth Amendment challenge.  The user still has access to content seized pursuant to § 2703, but no ability to edit or delete it.  Arguably, halting the destruction of potential digitized evidence implicates no privacy concerns under existing Fourth Amendment jurisprudence.[17]


As the nine Supreme Court Justices (most likely) debate whether or not Wurie’s or Riley’s Fourth Amendment rights were violated, they should keep in mind that new and emerging technologies provide just as many solutions as they do Fourth Amendment problems.  Section 2703 is just one example of how exigent searches of electronic devices might be better handled by law enforcement’s reliance on similar technologies to address specific technological exigencies.  The three digital seizure methods suggested by the Wurie Court disguise a larger problem that remotely-stored and remotely-wiped evidence presents.


* J.D. Candidate, University of Illinois College of Law, expected 2014.  B.A. Psychology and Drama, University of Arkansas, 2010.  I thank the Recent Developments Editor at the Journal of Law, Technology and Policy, Angie Nizio, for her advice and attention to this piece.

[1] United States v. Wurie, No. 11-1792, 2013 WL 2129119 (1st Cir. 2013); California v. Riley, No. D059840, 2013 WL 475242 (Cal. Ct. App. 2013).

[2] See, e.g., Dana Liebelson, Will the Supreme Court Stop Cops from Reading Your Text Messages?, Mother Jones (Sept. 17, 2013, 3:00 AM), (quoting Alan Butler: “It’s very likely that the Supreme Court will grant certiorari and review the issue (either in Riley or Wurie). If the Court does not take one case, it will likely take the other.”).

[3] Segura v. United States, 468 U.S. 796, 806 (1984) (“Recognizing the generally less intrusive nature of a seizure, the Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been held impermissible.” (citations omitted)).

[4] See Declan McCullagh, Cops to Congress: We Need Logs of Americans’ Text Messages, CNET (Dec. 3, 2012, 9:00 AM), (“As the popularity of text messages has exploded in recent years, so has their use in criminal investigations and civil lawsuits.”).

[5] iCloud: Erase Your Device, Apple Support (Sept. 18, 2013),

[6] Wurie, 2013 WL 2129119, at *9.

[7] Petition for Writ of Certiorari at 22–23, Riley, 2013 WL 475242, (No. 13-132).

[8] SkyDrive, Microsoft, (last visited Oct. 7, 2013); see also File Deletion and Recovery Policy, Google Drive, (last visited Oct. 7, 2013) (“Anything permanently deleted from Google Drive can’t be recovered.”).

[9] In re Edward Cunnius, 770 F. Supp. 2d 1138, 1144–45 (W.D. Wash. 2011).

[10] Id. at 1145 (“All data on the internet is both separate and one.”).

[11] United States v. Cotterman, 709 F.3d 952, 965 (2013).

[12] Mireille Dee, Note, Getting Back to the Fourth Amendment: Warrantless Cell Phone Searches, 56 N.Y.L. Sch. L. Rev. 1129, 1162 (2011–12).

[13] See Microsoft Services Agreement, Windows Live (Aug. 27, 2012), (describing, in Sections 5.2 and 5.3, how the user consents to Microsoft accessing and preserving their content).

[14] 18 U.S.C. § 2703(f)(1) (2006).

[15] See Sandy Boucher & Barry Kuang, Email Evidence – Now You See It, Now You Don’t!, Forensic Focus, (last visited Oct. 7, 2013) (“In a recent case, we were able to recover some very recent emails from a system using Windows Live Hotmail but older messages were gone and even those recovered from unallocated space were fragmented and hard to use.”).

[16] See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (holding that police may temporarily detain a person and his or her belongings based on reasonable suspicion).

[17] See Warden v. Hayden, 387 U.S. 294, 305–06 (1967) (“And with particular relevance here, we have given recognition to the interest in privacy despite the complete absence of a property claim by suppressing the very items which at common law could be seized with impunity: stolen goods; instrumentalities; and contraband[.]” (citations omitted)).

An Android in the Jury Room

By Matthew J. Donigian*

I. Introduction

The foreperson is considered an essential component of the American jury.[1]  After being selected foreperson, a juror is delegated the responsibility of harnessing the fact-finding power of the jury to reach an efficient and just verdict.  Although jurisdictions employ different methods when selecting a foreperson, the foreperson almost always functions as the jury’s leader and exercises her power by organizing discussion as she sees fit.  In recent years various jurisdictional foreperson selection processes have been scrutinized by empirical studies that aim to discover if the foreperson’s role gives her unequal influence in a jury’s verdict.  These studies indicate that the foreperson does possess considerable power and that certain methods of selecting a foreperson may be injecting inequity into the system.

Recently, amazing progress has been made in the fields of computing and artificial intelligence (AI), which may allow for an artificial intelligence to take over many of the administrative tasks that are currently taken care of by the foreperson.  Since the advent of the first digital computer—ENIAC—in 1947, the ratio of cost to processing power in computers has increased exponentially.  This reality has produced stunning advances in computing power over the last half century.  In 1986, the Cray X-MP supercomputer was capable of .220 gigaflops of processing power at the cost of about $15 million.[2]  Compare this to the HPU4Science cluster, which has 6,000 gigaflops (6 teraflops) of processing power and cost about $30,000 to build in 2011 using commercially-available gaming computer hardware.[3]  In addition, groundbreaking advancements in machine audio-visual recognition capabilities, natural language processing, and general increases in the sophistication of artificial intelligence are making technological feats once relegated to science fiction novels not only possible, but affordable; two stunning examples of this technology are the Forum and Blog Threaded Content Analysis project that is capable of analyzing “large volumes [of] social media content” and providing summaries useful to intelligence operations[4] and Google’s self-driving car.[5]

Exponential increases in computing power will inevitably allow an artificial intelligence to perform the responsibilities of a jury foreperson.  Handing over the responsibility of controlling the logistical affairs of the jury to an artificial intelligence may prevent the inequities created by unequal delegation of power to the jury foreperson.

II. Problems with the Human Foreperson

As expected, jury forepersons have more influence than other jurors during

deliberations.[6]  Forepersons also participate much more than other jurors, and “account for about 25%-31% of speaking during deliberations . . . .”  In addition, the foreperson makes “twice as many novel statements of facts or opinions” when compared to other jurors.

Jury forepersons are selected differently depending on the jurisdiction.  In most states the jurors themselves are free to choose the foreperson at the beginning of the trial, while in some states the judge selects the foreperson before deliberations begin.  Depending on the selection method employed, different sources of bias may have an effect on which juror is ultimately selected.  For example, when a judge selects a foreperson they may give preference to a juror “who nods at the right times and seems to interpret the case in the same way that judge does.”[7]  In states where jurors select their own foreperson there is evidence that education, occupation, and expertise influence the jurors’ choices.

Does the bias injected by the selection of a foreperson detract from the ideal the jury is meant to live up to?  This question largely depends on what ideal we have in mind.  In the not-so-distant past juries were almost exclusively composed of the wealthier elements of society, and the Supreme Court’s recently adopted ideal of the cross-sectional jury is in stark contrast to the composition of juries at the founding.  In Thiel v. Southern Pacific Co., the Court explains why the cross-sectional jury upholds democratic ideals: “[j]ury competence is an individual rather than group or class matter.  That fact lies at the very heart of the jury system.  To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.”[8]

III. Technology Required to Create an AI Foreperson

A foreperson requires three major abilities in order to perform her function.  First, a foreperson must be able to hear jury deliberations.  Second, a foreperson must be able to think about what is said by other jurors and process that information.  Third, (ideally) a foreperson should be able to use this information to direct the jury’s discussion.  If a computer is to play the role of foreperson then it must be able to perform all of these functions as well as a human.

A. Speech Recognition

Jury deliberations present several challenges that voice recognition software must overcome if an artificial intelligence is to take over the role of foreperson.  The three most puzzling obstacles are the format of jury deliberations, which may often involve speakers talking over one another in varying volumes and voice types, the speed at which deliberations may take place, and the constant turnover of new jurors each time a trial takes place.

These are major challenges for modern speech recognition software because in order to increase accuracy, current software must be sensitive to a user’s voice while remaining extremely insensitive to outside noise.  This makes the best speech recognition software on the market very good at recognizing the speech of a long-time user with a noise-cancelling microphone but inept at accurately recognizing speech in a multi-party conversation.

The most popular speech recognition software on the market today is Dragon NaturallySpeaking (Dragon).  Although it is amazingly accurate, Dragon is inadequate for application in the jury room for two reasons: first, Dragon owes much of its accuracy to its ability to be “trained” by a user by analyzing the user’s voice when reading preset written materials;[9] and second, Dragon recommends completing training exercises in a location with similar ambient noise to the location where a user will be dictating so that Dragon can better isolate the user’s speech from other noises.

Recent developments in speech recognition algorithms have led to the creation of speech recognition software that—while less accurately than trained software like Dragon—can analyze speech without being trained by a user and can be used in everyday life.  The most popular of this new wave of software are Apple’s Siri and Google Voice Search.  And while these technologies have much of the speech recognition capabilities that would be needed by an AI foreperson, they have been criticized as inaccurate, with one review claiming that Siri processes speech accurately in noisy conditions only eighty-three percent of the time.[10]  Since many queries that are processed by Google Voice Search and Siri are short and to the point, these numbers would likely be far lower when presented with the unique challenges of the jury room.

B. Critical “Thinking” and Natural Language Processing

In order for an artificial intelligence to perform the duties of foreperson, recognizing the speech of jurors is not enough.  The artificial intelligence must also be able to accomplish the more complex task of understanding the context and nuances of natural language.  Without this ability, the machine is simply replacing the court reporter instead of becoming an element of the deliberating body.  While this capability is still outside the reach of current technology, there are several projects that show promise that this accomplishment will become feasible in the near future.

IBM stunned the world on February 14, 2011, when “Watson,” a supercomputer, beat Jeopardy! Champion Ken Jennings in the first and second rounds of a three-round tournament.[11]  Accomplishing this feat required Watson to hear and answer a broad array of questions, many of which included slang terms or cultural references.  Watson was able to win at Jeopardy! largely because of IBM’s natural language processing technology that allowed the supercomputer to “understand” the context of the question being asked and  provided a degree of representation and reasoning based on the processing of the information.

Natural language processing capability is essential to any artificial intelligence foreperson.  A skilled foreperson should also be able to sense consensus and call for straw-poll votes when the debate has coalesced.  Although Watson’s capabilities suggest that this technology will be available in the future, it is not yet adequate for this application.  Watson’s current capabilities are focused on answering specific and structured questions like those in Jeopardy!, and although jStart (Watson’s commercialized version) has been used in more practical applications like processing patient discharge reports in plain-text and generating follow-up alerts for healthcare providers, it is not built to process the massive amount of data and ambiguity present in live-action juror deliberations.[12]

C. Interaction

Perhaps the most important part of an artificial intelligence is its ability to communicate useful information to humans.  If all Watson did was “think” about Jeopardy! questions it may produce interesting academic data, but its astounding capabilities would be lost on much of the population.  What makes Watson truly amazing is its ability to synthesize the previous two capabilities—speech recognition and natural language processing—and then render the correct answer.  IBM allowed Watson to “think” by giving it a plethora of academic resources, the entirety of Wikipedia, and other reference materials.

However, having access to a world of knowledge is not enough.  Watson also needed to be able to sift through this information to identify the knowledge that was pertinent to each question.  IBM’s DeepQA technology gave Watson this ability by allowing Watson to consider the different ways that a question could be interpreted and then use probabilities and a complex search algorithm to hone in on the most likely answers.

Technology like Watson is currently inaccessible to state and federal courts due to the extremely large investment required for Watson to perform at the level it did during Jeopardy!.  This investment is computing power, and Watson had an unbelievable amount at its disposal: 90 clustered IBM Power 750 servers (each retailing at over $85,000) churning out over 80 teraflops of computing power.  Even if Watson-like technology was more cheaply available, it still would not be able to perform the functions of a competent jury foreperson.

IV. Future Feasibility as Evidenced by Exponential Increases in Computing Power

Although computer hardware and artificial intelligence software are currently incapable of performing the functions of the jury foreperson, this capability may not be as far off as many think.  According to Ray Kurzweil, the Engineering Director of Google, computer speed is not only increasing at an exponential rate, but the rate at which computer speed is increasing is also increasing exponentially.[13]  At this rate, supercomputer power will increase to around 500 times faster than the world’s fastest supercomputer, the Titan CrayXK47, by the year 2020.[14]

Kurzweil not only predicts exponential increases in computing power, but also exponential increases in computing price-performance.[15]  According to Kurzweil, this means that “later in this century . . . a thousand dollars of computation will be trillions of times more powerful than the human brain.”  This amount of computing power would be more than capable of performing the functions required of a jury foreperson, and affordable computers capable of performing this feat will most likely be available far before the type of system mentioned by Kurzweil.

IV. Conclusion

The constitution guarantees a criminal defendant the right to a trial by a jury of her peers.  This right places limitations on the role that an artificial intelligence can and should play in the jury room.  However, by relinquishing the leadership functions of the foreperson to an artificial intelligence, the jury can avoid any corruption associated with the foreperson’s selection and the power afforded her.

Eventually, artificial intelligence will be able to perform managerial and organizational tasks far better than any human foreperson.  An artificial intelligence could provide jurors with an accurate breakdown of how much each juror has contributed, a catalog of those contributions, and could ensure that jurors regard jury instructions when delivering a verdict.

In the near future, increases in technology will allow for an artificial intelligence to enter the jury room as a powerful tool.  In order to prepare for this reality, ethical concerns regarding the extent to which an artificial intelligence should participate in deliberations must be considered, and any implementation must carefully balance the defendant’s constitutional right to a trial by a jury of her peers and the interests of fairness and efficiency.


* J.D., University of Illinois College of Law. B.A., Political Science, University of Massachusetts at Amherst.

[1] The foreperson is usually elected at the beginning of deliberation and is charged with leading the jury’s discussion.  The foreperson will often call for straw-poll votes to check the jury’s progress toward a verdict.

[2] CRAY X-MP/48: 1986–1990, SCD Supercomputer Gallery, (last visited May 8, 2013).

[3] Adam Stevensen, High Performance Computing on Gamer PCs, Part 1: Hardware, Ars Technica (Mar. 30 2011, 11:30 PM),

[4] Noah Shactman, Air Force’s Top Brain Wants a ‘Social Radar’ to ‘See Into Hearts and Minds, Wired (Jan. 19, 2012, 6:30 AM),

[5] See Ashlee Vance, Google’s Self-Driving Robot Cars Are Ruining My Commute, Bloomberg Businessweek (Mar. 28, 2013), (explaining the effects of Google’s self-driving cars on driving).

[6] Traci Feller, What the Literature Tells us About the Jury Foreperson, 22 Jury Expert 42, 42 (2010), available at

[7] Id. at 45.

[8] Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946).

[9] See Learn Some Quick and Easy Tricks to Using Dragon NaturallySpeaking, Nuance, (last visited May 8, 2013) (explaining how to “train” Dragon to recognize your speech).

[10] Philip Elmer-DeWitt, Minneapolis Street Test: Google Gets a B+, Apple’s Siri Gets a D, CNNMoney (Jun. 29, 2012, 6:42 AM),

[11] David R. Martin & Jim Fitzgerald, IBM’s Watson Beats ‘Jeopardy!’ Champs Ken Jennings and Brad Rutter in First Public Test, Mass Live (Jan. 13, 2011, 10:04 PM),

[12] UNC Healthcare: How Big Data Was Leveraged to Reduce Medicaid Re-Admissions, IBM Software: jStart Portfolio, (last visited May 8, 2013).

[13] Ray Kurzweil, How My Predictions Are Faring 135–36 (2011), available at

[14] See Introducing Titan, (last visited May 8, 2013) (describing Titan’s theoretical peak performance as 20 petaflops, or 2×1016 flops, compared to Kurzweil’s projection of around 1×1019 flops in 2020).

[15] Ray Kurzweil, Kurzweil Responds: Don’t Underestimate the Singularity, MIT Tech. Rev. (Oct. 19, 2011),