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11th Cir. Rules on Digital Searches in Child Pornography Case

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By Jonathan R. Tung, Esq. on December 07, 2015 5:59 AM

When you look at a still-shot of a video, does that mean you've "seen" the whole video?

This seemingly silly question sits at the core of a legal issue that has only further divided the federal circuit courts, probing deep questions about the scope of Fourth Amendment Searches and digital privacy. Perhaps the more probing legal question should be this: Does seeing the screenshot give law enforcement the authority to search the entire device on which a particularly potentially criminal video was found?

The Eleventh Circuit said no, but its decision in the case of United States v. Johnson will no doubt be alluded to in a future cases reviewable by SCOTUS. Just where does a digital search begin and end?

Legal Issues

Professor Orin Kerr, who regularly writes pieces for the Washington Post and The Volokh Conspiracy explains that in his opinion, the legal doctrine implicated is what he has previously called "private-search reconstruction" doctrine.

Since the Fourth Amendment search limitations only apply to the government, the question is the scope of government search and review of materials when a private citizen searches a digital device and produces that material to law enforcement.Since LEO must generally procure a search warrant defining the scope of the search, the "private-search reconstruction" doctrine defines the search pretty much by the wanderings of the private citizen.

Does the private viewing of a screen-shot give the police authority to view an entire video? What about all the videos on the device? What about the entire device itself?

Cell Phone With Child Pornography

Defendant Johnson accidentally left his cell phone at Wal-Mart, and boy was that an accident. In the words of the Eleventh Circuit, this was "not just any cell phone": it contained hundreds of videos and images of child pornography.

An employee found the phone and accessed it. She saw photos and images of said child pornography. She showed her husband who then gave the phone to law enforcement. Law enforcement then not only looked and viewed the images the husband had shown him, but went through the entire folder to view the offending material for law enforcement purposes. Thus, LEO saw more than what the employee and her husband saw.

Scope of Lawful Government Search

The most important legal issue of the case was the extent and scope of lawful government search. The Eleventh Circuit held that the officer did not exceed the scope of search when he viewed and watched the videos that the husband watched, but did exceed the scope of search when he went to other files in the folder Widner had not watched. The EFF would almost certainly agree.

In Kerr's opinion, the Eleventh Circuit certainly did not reach the opinion that the entire device was searchable, and most likely took a view that "file for file" was the right approach. So, for circuits that have addressed the issue, the current score is 2-2.

The whole issue from Johnson's point of view is entirely academic -- there was enough child pornography that both the Wal-Mart employee and her husband had seen for LEO to put Johnson away for a long time.

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