Privacy: Searching and Seizing Computers

From Internet Law Treatise

Reasonable Expectation of Privacy

Accessing information stored in a computer ordinarily will implicate the owner's reasonable expectation of privacy in the information. See United States v. Barth, 26 F. Supp. 2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable expectation of privacy in files stored on hard drive of personal computer); United States v. Reyes, 922 F. Supp. 818, 832-33 (S.D.N.Y. 1996) (finding reasonable expectation of privacy in data stored in a pager); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995) (same); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993) (same); United States v. Blas, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) ("[A]n individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container."). See also United States v. Long, 64 M.J. 57 (CAAF 2006) (finding REOP in emails defendant sent from her office computer and in emails stored on government server); Quon v. Arch Wireless, 445 F.Supp.2d 1116 (C.D. Cal. 2006) (gov't employee had REOP in text messages sent through his city-owned pagers).

The Tenth Circuit has cautioned that "[b]ecause computers can hold so much information touching on many different areas of a person's life, there is greater potential for the 'intermingling' of documents and a consequent invasion of privacy when police execute a search for evidence on a computer." United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001). But see United States v. Gorshkov, 2001 WL 1024026, at *2 (W.D. Wash. May 23, 2001) (holding that defendant did not have a reasonable expectation of privacy in use of a private computer network when undercover federal agents looked over his shoulder, when he did not own the computer he used, and when he knew that the system administrator could monitor his activities).

In the offline world, the U.S. Supreme Court has recognized legitimate privacy interest in confidential letters. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1657 (1984) (“Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy.”). See also Ortega v. O’Connor, 146 F.3d 1149, 1163 (9th Cir. 1998) (under circumstances, employee had legitimate expectation of privacy from employer).

Warrantless Searches: Border Search Exception

In United States v. Arnold[1] (http://www.eff.org/cases/us-v-arnold), the Ninth Circuit held on April 22, 2008 [2] (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6D5D931898D8168188257432005AC9B8/$file/0650581.pdf?openelemen)t that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border. The lower court ruling relied on prior border search cases that distinguished between “routine” suspicionless searches and invasive “non-routine” searches that require reasonable suspicion. Due to the private nature of computer laptops and the information they contain, the trial court required border agents need reasonable suspicion to search the defendant’s machine. Since there was no cause for the search in Arnold, the court suppressed the evidence.

The Ninth Circuit panel reversed, rejecting the view that vast digital storage capacity means the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items. Rather, the opinion could be read to say that property searches at the border, so long as they are not excessively destructive, require no cause at all. The opinion reads too literally Arnold’s reliance on cases protecting the home from suspicionless searches, and then dismisses the analogy by pointing out “the simple fact that one cannot live in a laptop”. The defendant has time to seek en banc review, and this strange opinion suggests that Arnold will not be the last word on border searches of laptops.

The opinion leaves open that invasive, “non-routine” searches of the person may still require reasonable suspicion.

Privacy Protection Act

The Privacy Protection Act, 42 U.S.C. 2000aa, dictates: "Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation . . . of a criminal offense to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, broadcast, or other similar form of public communication . . . ." See 42 U.S.C. Sec. 2000aa(a). According to the Senate Report, the PPA protected "the press and certain other persons not suspected of committing a crime with protections not provided currently by the Fourth Amendment." S. Rep. No. 96-874, at 4 (1980), reprinted in 1980 U.S.C.C.A.N. 3950.