Courts Continue to Examine Digital Electronic Privacy Issues

Case Law: Search and Seizure of Digital Electronics

In a separate web posting I detailed the ruling and background pertaining to Riley v. California, a 2014 landmark U.S. Supreme Court decision which said that police cannot search the contents of a smart phone (or flip-top phone) without a warrant. The ruling generally was viewed by legal pundits and others as a victory for individual privacy rights, but other Fourth Amendment issues related to high-tech devices remained up in the air.

Following the decision, legal questions surrounding warrantless police searches of other electronics such as laptop and desktop computers have been winding through the lower courts, potentially paving the way for the high court to decide those matters.

Lichtenberger Case

A recent Sixth Circuit case examined privacy rights pertaining to a home computer that contained images of child pornography. The court’s ruling upheld a lower court decision that evidence against the defendant, Aaron Lichtenberger should be suppressed because the search was unconstitutional.

Background: Lichtenberger was arrested for failing to register as a sex offender. His girlfriend, wondering why she was never allowed to use his computer, hacked into it and found images of child pornography. She notified the authorities, the police obtained a warrant to search the computer, which led to more pornography. They found what they were searching for.
Once a private individual searches someone else’s stuff, that other person’s stuff is fair game for law enforcement, as the reasonable expectation of privacy is gone. This is known as the Private Search Doctrine.

The limit of a private search, though, is that law enforcement needs to have a “virtual certainty” that they’ll discover only evidence of criminality. This was pretty easy to ensure in the landmark private search case, U.S. v. Jacobsen, which dealt with a FedEx package containing cocaine.

A computer, though, is different. When police asked Lichtenberger to show them the files she previously saw, she couldn’t remember which folders she had looked through. As a result, police had to look through folders that Lichtenberger’s girlfriend may not have previously disclosed to police, creating a danger that they “could have discovered something else on Lichtenberger’s laptop that was private, legal, and unrelated to the allegations prompting the search.” The court decided that the requisite virtual certainty was not present since the folders on the computer could have contained private information about his health, finances, or even his “choice of restaurant.”

As one can see, the Riley v. California ruling comes into play here also. In Riley, the court ruled that an electronic device is not like any other physical container. Vast amounts of personal information can be stored on high-tech tools such as a smart phone or a computer.

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