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Fourth Amendment ApplicabilityFourth Amendment Applicability__________

expectations of privacy inside and outside the expectations of privacy inside and outside the boxboxboxbox

Thomas K. ClancyThomas K. Clancy

DirectorDirector

www.www.NCJRL.orgNCJRL.org

Amend. IV

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.

applicability and satisfaction

IN EVERY CASE, ....

1. Does the 4th Apply?

A 't ti it "S h" "S i "A. gov't activity: "Search" or "Seizure"

B. Protected interest: liberty, possession, privacy

2. Is it Satisfied?"Reasonable" Warrant Clause requirements

[3. Remedies?]

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ApplicabilityDoes the 4th Apply Does the 4th Apply ??

part A:part A: need gov't activity:need gov't activity:

""SearchSearch" or "" or "SeizureSeizure" "

part B:part B: that activity must intrude upon athat activity must intrude upon aprotected interestprotected interest

this presentation is about Part Bthis presentation is about Part B

protected interests

4th: 4th:

"The right of the people to be "The right of the people to be SECURESECURE in theirin their persons housespersons housesSECURE SECURE in their in their persons, houses, persons, houses, papers, and effects papers, and effects . . . .". . . ."

step #1:step #1: is object on list?is object on list?

person, house, paper, or effectperson, house, paper, or effect

step #2: quality protected?step #2: quality protected?step #2: quality protected? step #2: quality protected?

does defendant have does defendant have protected interestprotected interestin that object implicated by gov't in that object implicated by gov't activity?activity?

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open fields “the special protection accorded by the F/A to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”

Hester v. U.S.Hester v. U.S., 265 U.S. 57 (1924), 265 U.S. 57 (1924)

agents trespassed onto private land investigating moonshinersagents trespassed onto private land investigating moonshiners

HesterHester’s holding “founded upon the explicit language of ’s holding “founded upon the explicit language of the Fourth Amendment”the Fourth Amendment”

Oliver v. United StatesOliver v. United States, 466 U.S. 170 (1984), 466 U.S. 170 (1984)

applicability detailed

objects protectedobjects protected

people people

"security" of each object implicated"security" of each object implicated

by "search":by "search": by "seizure":by "seizure":

REP analysisREP analysis liberty liberty p pp p

houseshouses

paperspapers

effectseffects

yy yy

REP REP "" possessionpossession

REP REP "" possessionpossession

REPREP "" possessionpossession

PrivacyPrivacy: main interest protected

"The principal object of theAmendment is the protection

f i "of privacy . . . "Soldal

Gov't Activity: "SEARCH"

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Reasonable expectation of privacy test

1. person exhibits actual, subjective expectation of privacy

2 i t i th t t ti2. society recognizes that expectation as

Justified / Reasonable / Legitimate

Smith v. Maryland, 442 U.S. 735, 740 (1979)

If either prong missing, no protected interest

partial list -- NO R.E.P.

Prison CellsHandwritingFacial CharacteristicsMovements OutsideOpen Fields Bank RecordsTrashVIN numbersField testing of suspected drugs

NO PROTECTED INTEREST -- F/A does NOT apply --

How to find "legitimate" expectation of privacy?How to find "legitimate" expectation of privacy?

look to:look to:

1 real property law

2 personal property law

3 "understandings that are recognized or permitted in society"

California v. Ciraolo, 476 U.S. 207 (1986)California v. Ciraolo, 476 U.S. 207 (1986)Rakas v. Illinois, 439 U.S. 128 (1978)Rakas v. Illinois, 439 U.S. 128 (1978)

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"inside the box, outside the box"

The Box Outside the box:network investigations

Digital Evidence Searches and Seizures

1. Is the Fourth Amendment applicable?

inside the box vs. outside the box

2. Is it satisfied?2. Is it satisfied?

two approaches to digital evidence

conceptual difficulties of applying traditional doctrines to digital evidence

inside the box:

when does person have REP in data in computer?

examined a variety of situations

1 ' t1. person's own computer-- info on screen-- data in computer

2. work and gov't computers-- monitoring and other policies that affect REP-- who has access to computer?

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Data on Work Computers – Governmental Employer

Whether REP in gov't computers: case-by-case analysis

Factors:

*context of employment relation

* access of other employees, public

* office policies, practices, or regulations

[ex] teacher -- no REP in computer owned by school district on deskin computer laboratory used to teach students about computers

Voyles

Monitoring policies

if no monitoring policy & no routine access by others to computer, may have REP in files

[ex] Leventhal: Def had REP in computer in his office when

*had exclusive use* no routine S/ practice no routine S/ practice* no notice of no REP in computer

despite*technical staff had access to computer*but maintenance normally announced* 1 unannounced visit to change name of server* occasional S/ of unattended computer for needed document

does not defeat REP

Policies reserving right to Inspect / Audit defeat REP

1. employee's written acknowledgement of agency policy,which

* prohibited personal use

* stated employees had no privacy rightsstated e p oyees ad o p acy g ts

* stated employee consents to inspection / audit

Thorn

2. school dist. reserves right to “access all informationstored on district computers”

Wasson

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Data on Work Computers – Private Employer

analysis similar to public employer

NO REP in computer provided by employer when

1 l i ht t i t1. employer reserves right to inspectMuick

2. company requires employee to assent to S/ every time employee accessed computer

Bailey

Outside the box:network investigations

three different legal frameworks for investigation

1 obtaining info that has no legal regulation

governmental responses:investigating on the internet /networks

1. obtaining info that has no legal regulation

2. Fourth Amendment applicability

3. statutory regulation

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using publicly available tools: no legal regulation

search engines, public web sites, chat rooms, etc.

info a ailable sing ad anced Inte net toolsinfo available using advanced Internet tools

NS lookup, Whois, Finger, Traceroute, Ping

Domain names, IP addresses, networks, contact persons

non-consensual interception of communications, etc, over the Internet to another party

example: email

possible analogies:

uncertain F/A applicability outside the box

possible analogies:

its like a letter in the mail

its like numbers dialed on a telephone

its like any info possessed by third party

Traditional F/A doctrine

No F/A Protection from 3rd Party Disclosures to Gov't

Rationale: Risk Analysis -- Voluntary Exposure

i l d b li f t h l t il fid ill t misplaced belief to whom voluntarily confides will not reveal secret

Miller

such risk “probably inherent in the conditions of human society"

Hoffa

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voluntary disclosure

assume risk that third party will disclose information, item to gov't

Peer-to-Peer (P2P) Networks

file-sharing technology --- creates virtual networks

criminal activity:

Copyright Infringement

Computer Hacking Worms -- Viruses -- Theft of information

Child Exploitation and Pornography

How P2P Works

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Considerations

User on Internet voluntarily

User decides, through software settings, what filessoftware settings, what files open to others

Every download exact duplicate of original

Law Enforcement Response

search file sharing networks for known childporn images

Questions:

“Search” w/in meaning of 4th Amendment?

Does user connected to Internet via P2P have reasonable expectation of privacy in files in shared folders?

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Operation Fairplay

U.S. v. Ganoe, 538 F.3d 1117 (9th Cir. 2008)

"To argue that Ganoe lacked the technical d t fi Li Wi

no REP in P2P

savvy or good sense to configure Lime Wire to prevent access to his child pornography files is like saying that

he did not know enough to close his drapes."

connecting to local network

US v. King, 509 F.3d 1338 (11th Cir. 2007)

REP?

hard drive contents "akin to items stored in the

unsecured areas of a multi-unit apartment building or put in dumpster accessible to the public"

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same principles applied --- No F/A protection against

1. disclosure of subscriber info by ISPs

2. Email recovered from recipient doctrines:

3. Internet chat rooms

4. Posting Info on a Website

doctrines:

voluntary exposure

assumption of risk

application of principles to --

1. Virtual worlds

2. cloud computing

3. web based datastorage

what are the relevant considerations?

virtual worlds

http://www.lively.com/html/landing.htmlhttp://www.lively.com/html/landing.html

create own virtual spacechat and interact with your friendsin rooms you create

express yourselfcustomize your avatar and stream personal videos and photos

add your room to your siteInvite your friends to chat and decorate

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virtual worlds

virtual Porn

rooms in virtual world

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getting more cloudy !

on line storage

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Quon: some answers?

cop sent text messages to wife, mistress via gov't issued pager

agency reviewed printouts obtained from provider to determine if needed more capacity for police business

issues:

1. Quon have REP in messages?

2. Wife / mistress have REP in messages?

3. Was search R -- ?

Formal Written Policy

explicitly said user had no REP could audit, monitor, or log all activity not for personal use Quon aware of and signed

police pager policies

Quon aware of and signed

"Informal Policy"

Lt. Duke: you pay overages, will not audit

Quon: NO answers

"case touches issues of far reaching significance," but disposed "by settled principles determining when a search is reasonable”

concern: "broad holding" on REP "vis-à-vis employer-provided technological equipment might p y p g q p ghave implications for future cases that cannot be predicted"

1. assumed Quon / women had REP

2. search reasonable - did not even decide if Scalia or plurality approaches in O'Connor v. Ortego proper !

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Reasonable as to Quon because ...

had very "limited" REP

legitimate gov't purpose for search

scope of search reasonable

redacted transcripts -- on duty hours only 2 months examined rejected least intrusive means etc

Reasonable as to the Women ?

Respondents:

if S/ unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.

no argument could be unreasonable even if Q search no argument could be unreasonable even if Q search was reasonable

Court:

"In light of this litigating position," since search reasonable as to Quon, "other respondents cannot prevail."

dicta on REP analysis -- some possible factors

whether Duke's statements change in OPD policy

did Duke have "fact or appearance" of authority to make change / guarantee REP

should public/ private employees be treated differently

gov't interests in review of messages, including performance evaluations, litigation on lawfulness of police actions, compliance with open records laws

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Rapid changes in dynamics of communication and information transmission affects what society accepts as proper behavior -- makes predicting EP and REP difficult

many employers expect / tolerate personal use often increases worker efficiency

employer policies concerning communications will shape REP, "especially" when "clearly communicated

some recent state statutes require employers to notify when monitoring electronic communications

uncertain evolution of workplace norms / law's treatment

Cell phone / text messaging pervasive -- hence:

one view -- "essential means or necessary instruments for self-expression, even self-identification"

another view -- because of ubiquity / affordability employees can buy own

Scalia, concurring

Applicability discussion “unnecessary” and “exaggerated”

Court's implication that where electronic privacy is concerned we should decide less than we otherwise would (that is less than the principle of lawwould (that is, less than the principle of law necessary to resolve the case and guide private action)–or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions–is in my view indefensible. The-times-they-are-a-changin' is a feeble excuse for disregard of duty.

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courts/ litigants likely to use dicta as "heavy-handed hint about how they should proceed"

Standard unworkable:

"Any rule that requires evaluating whether a given gadget is a 'necessary instrument for self-expression, even self-identification,' on top of assessing the degree to which 'the law's treatment of workplace norms has evolved,' is (to put it mildly) unlikely to yield objective answers."