Nobody Wrote the Law for Digital Property. So I’m Going To.

Here is a sentence that should exist in the United States Code and doesn’t:

The government may collect, examine, copy, use, and dispose of a person’s digital property only as follows.

Every day, federal agents and state/local law enforcement officers seize phones, image hard drives, pull cloud accounts, freeze crypto wallets, and search/query databases full of other people’s lives. Every one of those acts moves a piece of digital property along a lifecycle — it gets collected, analyzed, copied, used, and eventually disposed, or not. And there is no single law that governs that lifecycle from end to end. There are fragments. A warrant requirement here. A forfeiture statute there. A surveillance authority that sunsets on a schedule and a records law that points the other direction. Courts patch the gaps case by case, and the patches don’t agree with each other.

That’s the problem this blog exists to address.

I’m going to spend the next year drafting a statute in public — a model act that governs the full lifecycle of digital property in the government’s hands. Not a think-tank white paper. Actual sections, with actual operative language, argued out one piece at a time, with the real cases and bills stress-testing each provision as I go.

I’m not starting from a blank page, because a surprisingly good blueprint already exists. After the US Supreme Court decided Katz v. United States, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, commonly known as the Wiretap Act (codified at 18 U.S.C. §§ 2510-2522) or Title III. It does something we usually think is impossible: it takes an intangible thing — a private communication — and regulates its entire life. Who may authorize intercepting it. How it may be intercepted. How it may be used and shared afterward. When the intercepted communication is to be disposed. What happens when the rules are broken. That architecture is exactly the thing digital property is missing. So I’m going to borrow it, section by section, and rebuild it for a world of forensic images and seized wallets.

The lifecycle breaks into five verbs, and they’re the spine of everything I’ll write here:

– Collection — taking the digital property in the first place.

– Analysis — examining what you took.

– Copying — imaging it, and how long you get to keep the copy.

– Use — what you’re allowed to do with what you find.

– Disposition — giving it back, deleting it, or keeping it forever.

Title III handles the first, fourth, and fifth of those reasonably well. It barely touches the other two. Even with its flaws, Title III is orders of magnitude better than the patchwork of laws, policies, and processes that poorly attempt to apply traditional criminal procedure to the digital context.

A few things I should say up front. I’m not writing this to be neutral wallpaper. I think the government often collects and keeps too much, for too long, for too many purposes, with too little to show for it, and I’ll say so. But I’m going to argue it with statutes and cases, not adjectives. When I draft a section I think should bind the government, I’ll also draft the objection I’d expect from the other side, because a rule that can’t survive the strongest version of the counterargument isn’t worth proposing.

If you do this work — defense, prosecution, forensics, policy, or you just got a preservation letter you didn’t understand — I want you here, and I especially want you here when you think I’m wrong.

Starting the week of August 18, the schedule is twice a week. New sections of the model act on Tuesdays. The week’s real cases and bills on Thursdays. One year from now there should be a full draft act on the table.Nobody wrote the law for this. Let’s write it.