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E. The Fourth Amendment and Use of "Hash Values"

The instant warrant search protocol also purports to authorize the government to use hash values to perform the search. The government's proposed use of hash values does not necessarily narrow the scope of the search requested. Specifically, although "hash values" can be used to exclude files that do not interest the government such as a digital device's operating system, they can also be used to search and find evidence outside the scope of the warrant automatically and systematically. This is because most law-enforcement forensic software can automatically search for evidence of other crimes, such as child pornography, based on known hash values. See United States v. Mann, 592 F.3d 779, 783-84 (7th Cir. 2010) (detective ignored warrant limitations and conducted general search using Forensic Tool Kit (FTK) and its accompanying "KFF alert system" to locate child pornography).

The instant warrant application proposes to use "hash values," but contained no restrictions on that use, allowing the government to search for evidence of crime for which is lacks probable cause, such as child pornography. Moreover, the warrant affidavit does not demonstrate "hash values" exist that can be used to ferret out the evidence for which the government has probable cause in this case

In Matter of U.S.'S Application, Case No. MJ 11-55, 23-24 (W.D. Wash. Feb. 11, 2011)