Digital Evidence and The Constitution

1. Digital Evidence and The Constitution Sean B. Hoar sean.hoar@usdoj.gov

2. Text of the Fourth Amendment • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

3. When does a search occur under the Fourth Amendment? • A search occurs when the government infringes upon a “legitimate expectation of privacy” • The two part test: • 1. A person must have an actual subjective expectation of privacy • 2. Society must be prepared to recognize that expectation as reasonable

4. When does a search occur under the Fourth Amendment? • Probable cause is required to justify most governmental intrusions upon interests protected by the Fourth Amendment • Probable cause is defined as “a fair probability that contraband or evidence of a crime will be found in a particular place.”

5. When does a search occur under the Fourth Amendment? • What a person knowingly exposes to the public, even in his home or office, is not protected by the Fourth Amendment

6. The evolution of the Fourth Amendment • Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564 (1928); • Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 (1967); • Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967);

7. Olmstead v. United States Facts:Olmstead was the general manager of a large bootlegging operation in Seattle and throughout the state of Washington. This operation brought in over $2M annually (in 1920s dollars!). Federal officers tapped the phones of the operation’s main office building and the home phone lines of the scheme’s leaders in an investigation of a conspiracy to violate the National Prohibition Act. Listening to these conversations, the government was able to compile over 775 typewritten pages of call transcripts. Issues:Does the use of a wiretap violate the Fourth Amendment’s prohibition against unreasonable searches and seizures? Does the Fifth Amendment allow the government to introduce evidence obtained through a wiretap? Prohibition-era officers destroy kegs of beer

8. Olmstead v. United States Holding:Chief Justice Taft (pictured) wrote for the majority in this first case to apply the Fourth Amendment to the act of wiretapping. They held that no search or seizure occurred within the meaning of the Fourth Amendment in that a search must be of material things – the person, the house, papers, or effects – and that mere conversation is not within the ambit of the Fourth Amendment. Taft discussed the admissibility of evidence and wrote that it is determined by the common-law rule: it is not affected by the means by which it is acquired. He concluded that forbidding evidence that was obtained in a manner other than “nice ethical conduct” by government agents would “make society suffer and give criminals greater immunity.” Justice Brandeis wrote a forceful dissent urging his brethren to be forward-looking.

9. Olmstead v. United States The prescient dissent: Associate Justice Brandeis wrote a forceful dissent urging his brethren to consider the implications of allowing government agents unbridled discretion in the acquisition of evidence: “The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping.” 277 U.S. at 474. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” 277 U.S. at 479. “Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.” 277 U.S. at 485.

10. Olmstead v. United States Discussion Questions: • There are two competing values the Court discusses: the ability of the government to fight crime and the individual’s right to privacy. How do you balance the values? • If you were on the Taft court, which portion of the opinion would you have written?

11. Berger v. New York Facts: In an investigation of a criminal conspiracy to bribe the Chairman of New York State Liquor Authority, recordings were made on a “Minifon” (see next slide) by Ralph Pansini after he was “shaken down” for a bribe to obtain a liquor license. Using this information, authorities obtained an eavesdropping order that allowed them to place recording devices in the office of an attorney who was involved in the conspiracy. Issue: Does the New York statute allowing the government to eavesdrop on potential targets comport with the constitutional protections afforded by the Fourth and Fifth Amendments?

12. Berger v. New York A “Minifon” recording device such as this was worn by Ralph Pansini to gather evidence that led to the issuance of an eavesdropping order. The Minifon even came with a wristwatch microphone!

13. Berger v. New York Holding:The majority opinion described in some detail the history and evolution of eavesdropping before turning to the statute at issue. The Court held that New York’s statute was impermissibly broad and thus “contrary to the command of the Fourth Amendment.” Specifically, the statute was unlawful because it (1) raised a serious probable cause question – it did not require any belief that an offense had been or was being committed or that the “property” sought be described; (2) lacked particularization – it provided agents complete discretion to seize whatever they wanted to seize; (3) lacked any showing of necessity – it provided an extensive time frame for eavesdropping based upon only one showing of probable cause and did not require termination upon seizure of a particular conversation.

14. Berger v. New York • Holding: • conversation is within the ambit of Fourth Amendment protection; • use of electronic devices to capture conversation is a search; • warrant supported by probable cause particularly describing place to be searched, and things to be seized must leave nothing to discretion of officer executing warrant; • the Fourth Amendment’s right of privacy is enforceable against the States through the Due Process Clause of the Fourteenth Amendment; and • the need for Fourth Amendment’s protections is especially great in the case of electronic eavesdropping;

15. Discussion questions: 1. What is meant by Justice Clark’s statement that “[t]he law, though jealous of individual privacy, has not kept pace with…advances in scientific knowledge”? 2. If Olmstead is one end of the spectrum and Berger is the other end, where are we today? Berger v. New York

16. Katz v. United States Facts:Charles Katz was charged and convicted of illegal gambling, in violation of 18 U.S.C. § 1084. At trial, over Katz’s objection, the district court allowed the government to introduce telephone conversations they had recorded when Katz used a public pay telephone. The government had attached an electronic listening and recording device to the outside of the phone booth. The Ninth Circuit affirmed the conviction and the Supreme Court granted cert. Issue(s): Are phone conversations made inside of a public phone booth protected by the Fourth Amendment? Is a physical intrusion required to violate the Fourth Amendment? This is a phone booth . . . A relic of the past . . .

17. Katz v. United States Holding:The Court reversed the Ninth Circuit and held that where an individual can subjectively expect privacy, their conversation is protected by the Fourth Amendment. Justice Potter Stewart (pictured) wrote that the Fourth Amendment protects “people, not places.” Justice Harlan wrote an oft-cited concurrence that described an intrusion as a search if (1) the individual has a subjective expectation of privacy; and (2) society is prepared to recognize this expectation of privacy as reasonable. After Katz, the “trespass” doctrine no longer controls, i.e. the lack of physical intrusion has no constitutional significance.

18. “Reasonableness” under the Fourth Amendment: Lessons from Katz • Government agents must obtain judicial authorization prior to search; • Judicial authorization must be through detached scrutiny of a neutral magistrate; • Judicial authorization must be obtained through showing of probable cause; • There must be precise limits on the search; • An accounting of items seized must be made subsequent to the search

19. Katz v. United States Discussion Questions: 1. Justice Harlan’s test contains both a subjective and objective element. Are these two concepts in conflict? 2. Do you have a subjective expectation of privacy in your emails? Is this objectively reasonable? What must you do to forfeit any right to privacy you may have had?

20. Kyllo v. United States Facts:Federal authorities suspected Danny Kyllo of Florence, Oregon of operating an indoor marijuana grow. At 3:20 a.m., an agent pointed an Agema Thermovision 210 (pictured) from his parked car toward Kyllo’s house (part of a triplex). The resulting thermal image showed a “hot spot” above the garage. These images, along with other evidence, were used to obtain a search warrant, which subsequently resulted in authorities discovering a 100-plant grow operation. Issue(s): Does the use of a thermal imaging device to detect amounts of heat emanating from a private house constitute a “search” within the meaning of the Fourth Amendment? Danny Lee Kyllo

21. Kyllo v. United States Danny Kyllo outside his house The Agema Thermovision 210

22. Kyllo v. United States Four different images showing the different settings on the thermal imaging device. This image was reprinted as an Appendix in the U.S. Reports

23. Kyllo v. United States Holding: Justice Scalia, writing for a 5-4 Court, held that the Fourth Amendment protections for home privacy require a “firm” and “bright” line and that the use of a thermal imaging device required a warrant. The rule from Kyllo states that where the “Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” There was a vigorous dissent authored by Justice Stevens. Danny Kyllo

24. Kyllo v. United States Discussion Questions: Especially in recent years, the law appears to be reactionary - it struggles to keep up with technology. What do you anticipate will be the impact of Justice Scalia’s “publicly available” condition precedent to avoid a “presumptively unreasonable” search without a warrant? If the technology is publicly available, does the search become presumptively reasonable without a warrant? Does it make any difference that it is possible to buy an Agema Thermovision – and other similar products - on the Internet today? i.e. they are clearly publicly available . . . Danny Kyllo

25. The Fourth Amendment’s expectation of privacy in computer cases • Computers as Storage Devices • Generally, there is a reasonable expectation of privacy in closed containers, and, therefore, in the data stored in electronic devices • Expectation of privacy in information from a computer is lost, however, when it is openly available, i.e. peer to peer file sharing . . .

26. The Fourth Amendment’s expectation of privacy in computer cases • Third-party possession • Reasonable expectation of privacy in stored electronic information may be lost when control is relinquished to third parties • In third-party possession cases, distinguish between possession by a carrier in the course of transmission to an intended recipient, and subsequent possession by the intended recipient • During transmission, contents generally retain Fourth Amendment protection. Government intrusion and examination of contents ordinarily violates the reasonable expectation of privacy of both the sender and receiver

27. The Fourth Amendment’s expectation of privacy in computer cases • Third-party possession • Once an item has been received by the intended recipient, the sender’s reasonable expectation of privacy generally depends upon whether the sender can reasonably expect to retain control over the item and its contents. • When a person leaves a package with a third party for temporary safekeeping, for example, he usually retains control of the package, and thus retains a reasonable expectation of privacy in its contents.

28. The Fourth Amendment’s expectation of privacy in computer cases • Third-party possession • Once an item has been received by the intended recipient, the sender’s reasonable expectation of privacy generally depends upon whether the sender can reasonably expect to retain control over the item and its contents. . • If the sender cannot reasonably expect to retain control over the item in the third party’s possession, however, the sender no longer retains a reasonable expectation of privacy in its contents. See United States v. Charbonneau, 979 F. Supp. 1177, 1184 (S.D. Ohio 1997) (defendant does not retain reasonable expectation of privacy in contents of e-mail message sent to America Online chat room after the message has been received by chat room participants) and United States v. Poulsen, 41 F.3d 1330, 1337 (9th Cir. 1994) (failure to pay rent to commercial storage facility extinguished reasonable expectation of privacy in hacker’s computer tapes at that facility).

29. The Fourth Amendment’s expectation of privacy in computer cases • Information shared with third parties • Generally, one cannot reasonably expect to retain control over information revealed to third parties, even if senders have a subjective expectation that third parties will keep the information confidential • Example: subscriber information • Customers of Internet service providers do not have a reasonable expectation of privacy in customer account records maintained by and for the provider’s business

30. The Fourth Amendment’s expectation of privacy in computer cases • Private searches • The Fourth Amendment is inapplicable to a search or seizure, even an unreasonable one, conducted by a private individual not acting as an agent of the government • No violation of the Fourth Amendment occurs when a private individual acting on his own accord conducts a search and makes the results available to law enforcement

31. The Fourth Amendment’s expectation of privacy in computer cases • Private searches • In determining whether a private party is an instrument or agent of the government, half of the federal courts of appeal have adopted a “totality of the circumstances” approach that examines three factors: • (1) whether the government knows of or acquiesces in the intrusive conduct; • (2) whether the party performing the search intends to assist law enforcement efforts at the time of the search; and • (3) whether the government affirmatively encourages, initiates or instigates the private action

32. Exceptions to the warrant requirement in computer cases • Warrantless searches that violate a reasonable expectation of privacy will comply with the Fourth Amendment if they fall within an established exception to the warrant requirement.

33. Exceptions to the warrant requirement in computer cases • Consent • Agents may search a place or object without a warrant or even probable cause if a person with authority has voluntarily consented to the search. • Note that Oregon does not recognize “apparent authority.” Consent must be obtained from someone who has “actual authority” to do so.

34. Exceptions to the warrant requirement in computer cases • Consent • Scope of consent: Computer cases often raise the question of whether consent to search a location or item implicitly includes consent to access the memory of electronic storage devices encountered during the search. • Courts look to whether the particular circumstances of the agents’ request for consent implicitly or explicitly limited the scope of the search to a particular type, scope, or duration

35. Exceptions to the warrant requirement in computer cases • Consent • Written consent should clearly delineate the property to be seized and searched. If the search is to occur at an “off-site” location, the written consent should clearly authorize the property to be searched off-site. • A signed consent form for the seizure of “any property” under the defendant’s control and to “a complete search of the premises and property” at the defendant’s address merely permitted the agents to seize the defendant’s computer from his apartment, but did not permit them to search the computer off-site because it was no longer located at the defendant’s address. United States v. Carey, 172 F.3d 1268, 1274 (10th Cir. 1999).

36. Exceptions to the warrant requirement in computer cases • Third-party consent • General Rules: It is common for several people to use or own the same computer equipment. If any one of those people gives permission to search for data, agents may generally rely on that consent, so long as the person has authority over the computer. In such cases, all users have assumed the risk that a co-user might discover everything in the computer, and might also permit law enforcement to search this “common area” as well.

37. Exceptions to the warrant requirement in computer cases • Third party consent • Spouses and domestic partners • Parents • System administrators

38. Exceptions to the warrant requirement in computer cases • Third party consent • Spouses and domestic partners: Absent an affirmative showing that the consenting spouse has no access to the property searched, the courts generally hold that either spouse may consent to search all of the couple’s property. However, when one of them refuses . . . see Georgia v. Randolph . . .

39. Exceptions to the warrant requirement in computer cases • Third party consent • Georgia v. Randolph (2006) – generally . . . when two persons have equal use and control of a residence and one of them consents to a warrantless search of common areas of the premises, but the other refuses, the search violates the Fourth Amendment right of the objecting person

40. Exceptions to the warrant requirement in computer cases • Third party consent • Parental consent: Parents can usually consent to searches of their children’s rooms when the children are under 18 years old. If the children are 18 or older, the parents may or may not be able to consent, depending on the facts.

41. Exceptions to the warrant requirement in computer cases • Third party consent • System administrator consent: Every computer network is managed by a system administrator whose job is to keep the network running smoothly, monitor security, and repair the network when problems arise. System operators have “root level” access to the systems they administer, which effectively grants them master keys to open any account and read any file on their systems. System administrators typically serve as agents of “provider[s] of electronic communication service” under the ECPA. • The ECPA regulates law enforcement efforts to obtain the consent of a system administrator to search an individual's account. See 18 U.S.C. §§ 2702-03.

42. Exceptions to the warrant requirement in computer cases • Implied consent • Users of computer systems may waive their rights to privacy as a condition of using the systems. • A signed policy or employee manual may waive any privacy interest that an employee or user of a network system may otherwise have in the materials stored on the network • Clicking through a “banner” describing policies of use of network computers and warning that use may be monitored and that there is no privacy interest in the materials stored on the network may waive such an interest

43. Exceptions to the warrant requirement in computer cases • Exigent circumstances • Exigent circumstances often arise in computer cases because, in some circumstances, electronic data is perishable. • Computer commands can destroy data in a matter of seconds, as can humidity, temperature, and physical mutilation. Each case is fact dependent.

44. Exceptions to the warrant requirement in computer cases • Plain view • To rely on this exception, the agent must be in a lawful position to observe and access the evidence, and its incriminating character must be immediately apparent. • For example, if an agent conducts a valid search of a hard drive and comes across evidence of an unrelated crime while conducting the search, the agent may seize the evidence under the plain view doctrine. • Note, however, that any further search for evidence of the unrelated crime must be supported with a new warrant or consent • The plain view doctrine does not authorize agents to open a computer file and view its contents. The contents of an unopened computer file are not in plain view. See United States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999)

45. Exceptions to the warrant requirement in computer cases • Search incident to a lawful arrest • Generally, pursuant to a lawful arrest, agents may conduct a search of the arrested person, and a more limited search of his surrounding area, without a warrant. The arrest must be lawful and the search reasonably contemporaneous with the arrest.

46. Exceptions to the warrant requirement in computer cases • Search incident to a lawful arrest • Pagers: Historically, courts allowed police access to electronic pagers carried by the arrested person at the time of arrest. The information was generally limited to the display of numbers which recently called the pager.

47. Exceptions to the warrant requirement in computer cases • Search incident to a lawful arrest • Smartphones (BlackBerry, iPhone, Droid, etc.): The limit on a search incident to an arrest is that it must be reasonable. While a search of physical items found on the arrestee’s person may always be reasonable, more invasive searches in different circumstances may violate the Fourth Amendment. • The increasing storage capacity of handheld computers suggests that this exception may not always apply in the case of electronic searches. Courts may conclude that a very time-consuming search through a handheld computer that contains an entire warehouse of information may require a warrant. Seizure, as opposed to the search, may be permitted if it is reasonably related to the probable cause for the search.

48. Exceptions to the warrant requirement in computer cases • Inventory searches • After lawfully taking custody of property, police may conduct a warrantless search of the property to satisfy three purposes: • To protect the owner’s property while it is in police custody • To protect police against claims of lost or stolen propery • To protect police from potential danger • The search must serve a legitimate, non-investigatory purpose and must follow standardized procedures. • It is unlikely that the inventory-search exception to the warrant requirement would support a search through computer files or other electronic data.

49. Exceptions to the warrant requirement in computer cases • Border searches • “Routine searches” at the border or its functional equivalent do not require a warrant, probable cause, or reasonable suspicion that the search may uncover contraband or evidence. • Searches that are especially intrusive require reasonable suspicion.

50. Exceptions to the warrant requirement in computer cases • Special case: workplace searches. • The legality of warrantless workplace searches depends on often-subtle factual distinctions such as • whether the workplace is public sector or private sector • whether employment policies exist that authorize a search, and • whether the search is work-related