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Preparing for Another Computer Search Case at SCOTUS

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By Mark Wilson, Esq. on May 26, 2015 1:01 PM

The private search doctrine's applicability to computers will probably make its way to the U.S. Supreme Court, thanks to a recent Sixth Circuit decision in United States v. Lichtenberger.

After Aaron Lichtenberger was arrested for failing to register as a sex offender, his girlfriend hacked into his computer, found images of child pornography, and notified the authorities. Police obtained a warrant to search the computer, finding more pornography, but a federal district court -- and eventually the Sixth Circuit -- agreed that the evidence should be suppressed.

Virtual Certainty

The private search doctrine allows law enforcement to search things that have already been discovered by private individuals, on the theory that once something has been discovered, the reasonable expectation of privacy is gone.

This case, like many before it dealing with computer searches, is concerned with the scope of search. Unlike those cases, however, we have the Supreme Court's decision in Riley v. California, which took seriously the idea that a computer is not like any other container in that the amount of data that can be stored on a computer implicates privacy interests in a way that physical containers don't.

When police searched Lichtenberger's computer later, they needed to have a "virtual certainty" that, whatever location they searched, they would find child pornography. The Sixth Circuit wasn't willing to go this far, finding that folders on his hard drive could have contained "[o]ther documents, such as bank statements or personal communications" or "[I]nternet search histories containing anything from Lichtenberger's medical history to his choice of restaurant."

The Files Are in the Computer!

Thanks to Riley, all of our old case law about searching physical containers is shifting in the circuit courts of appeal when it comes to computers. Eugene Volokh observes that it might be changing even more than that; the Sixth Circuit's decision has created a circuit split on the application of the private search doctrine to computer searches. Specifically, says Volokh, the circuits disagree on which unit to use when deciding the scope of the search.

In Lichtenberger, the court seemed to suggest that folders on a computer are separate containers for the purpose of determining the scope of the private search. In the Seventh and Fifth circuits, however, the device -- i.e., the computer -- is the container, meaning the whole file system of the computer is fair game during a search.

Because Chief Justice Roberts engaged with the nature of the technology itself and didn't just analogize a cell phone to a pack of cigarettes or a purse, any opinion resulting from this case (which will be about two years away) will probably also take technology seriously. The lodestar here isn't the physical characteristics of the device being searched, but the nature of the device and what types of things it can contain. As we'll no doubt be reminded in a few years, a computer just isn't like a wrapped parcel.

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