Electronic evidence is any electronically stored information (ESI) that may be used as evidence in a lawsuit or trial. Electronic evidence includes any documents, emails, or other files that are electronically stored. Additionally, electronic evidence includes records stored by network or Internet service providers.

Which Laws Govern Electronic Evidence?

There are two sources of law which govern the collection of electronic evidence:

1) The Fourth Amendment - the amendment that protects individual privacy interests by preventing unreasonable searches and seizures.

  • Searches with a warrant: Under the Fourth Amendment, the police may seize and search your computer if they have a valid search warrant. A valid search warrant allows them to take your personal computer and search it.
  • Searches without a warrant: The police may search your computer for incriminating evidence. In some cases, they do not need a search warrant to do so. These warrantless searches are constitutional when there is no reasonable expectation of privacy, or there is an exception.

2) Statutory Privacy Laws - Various Federal laws regulate how and when electronic evidence may be collected.

  • Electronic Communications Privacy Act regulates how police can get the following: Stored account records from network service providers, Internet service providers (ISP's), telephone companies, cell phone service providers, satellite service providers. The ECPA also limits how electronic surveillance may be conducted.
  • The Patriot Act expands the power of the police to collect electronic evidence. It eased the restrictions placed on investigators and allows police to more easily access ESI.

How Can Electronic Evidence Be Used Against Me?

Prosecutors can use electronic evidence to establish the elements of the crime you are being charged with. Emails or saved instant messaging conversations may be incriminating, especially in cyber bullying and Internet stalking criminal cases. Internet browser histories may be used to show that you researched topics associated with the crime. Word processing or spreadsheet documents may be used to show elements of various white collar crimes.

Digital photos or movies may also be uses as evidence of your involvement in a crime, especially in the case of revenge porn. In short, electronic evidence may be used against you in the same ways as traditional tangible evidence.

Should I Get an Attorney If the Police Have Seized Electronic Evidence?

Yes. If the police have seized evidence on you, it is important that you contact an attorney immediately. A criminal defense attorney can help you defend yourself against any charges. Your attorney will also be able to make sure that your rights were not violated in the search and seizure of electronic evidence.