Cotterman, 709 F.3d 952, 961 (9th Cir. But a lot can change in 30+ years. In other words, a search that begins as inherently as private can become a government search if the government expands the scope of the private search. at 2488). United States v. Finley, 477 F.3d at 254.

Purely private searches, even when the private party ultimately turns information over to law enforcement, will not trigger Fourth Amendment protections. 378 0 obj 0000002766 00000 n For example, a search of an employer-owned electronic device by a government employer for a non-investigatory, work-related purpose does not require a probable cause warrant and need only be “reasonable.” City of Ontario v. Quon, 130 S.Ct. 0000006102 00000 n The Tenth Circuit has noted personal computers “contain (or at least permit access to) our diaries, calendars, files, and correspondence—the very essence of the ‘papers and effects’ the Fourth Amendment was designed to protect.” United States v. Christie, 717 F.3d 1156, 1164 (10th Cir. 0000001492 00000 n . Middle Schoolers Are More Suicidal Than Ever. Steagald v. United States, 451 U.S. 204, 220 (1981). at 2485 (analyzing whether cell phone could be searched incident to arrest by looking at justifications for the application of the doctrine “to this particular category of effects”) (emphasis added); see also United States v. Al-Marri, 230 F.Supp.2d 535, 541 (S.D.N.Y. Jan. 17, 2013) (unpublished), a private person accessed a neighbor’s computer files he had inadvertently shared over the Internet in iTunes. Lichtenberger, 2015 WL 2386375, *11. Similarly, in United States v. Lopez-Cruz, the Ninth Circuit found a defendant had Fourth Amendment standing to challenge the search of a cell phone found in the car he was driving, even though he admitted to officers the phone did not belong to him, because he possessed the phone and used it and did not try to throw the phone out of the car when stopped by police. 945 (2012), the FBI installed a GPS tracking device onto Jones’ car and tracked his movements over 28 days. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Jones, 132 S.Ct. at 353 (Stewart for majority) 2473 (2014). h�b```b``~������� �� @16�]28. Applying Fourth Amendment Protections to Electronic Devices and Data, /wp-content/uploads/2013/08/james-publishing-logo-education3.jpg, 2019 © James Publishing. See, e.g., In re Search of 3817 W. W. End, First Floor Chicago, Illinois 60621, 321 F. Supp. SSD: Initial Hearing Questions for Claimant, Strategies for Handling a Bad Faith Claim, Summarizing Damages in a Personal Injury Case, Supervisor Deposition Questions for Harassment, Retaliation, and ADA, The Disability Hearing: Attacking the Vocational Expert’s Testimony on the Number of Jobs, The Five-Step Sequential Evaluation Process for a Disability Claim, Three Tests to Classify a Claimant’s Previous Work Experience as Past Relevant Work, Tips for Drafting the Premarital Agreement, Tips for Settling the $5-75,000 Bodily Injury Claim, Transferability of Claimant’s Skills: Principles and Cross-Examination, Trial Tips: Challenging Written Statements, Trusts: Protecting Beneficiaries with Spendthrift Clauses, Uncovering Hidden Assets in Divorce Proceedings, Understand Your Clients’ Needs Using Survey Monkey, Weight of Non-Examining Reviewing Consultant, Why and How to Use a Biomechanical Expert in Whiplash Cases, Witness Examination Objections in New York, JamesToolbox.com: Free case studies - how to market a law firm, Electronic Devices are Containers and “Effects”, Data Stored in Electronic Devices are Fourth Amendment “Papers”, Expectation of Privacy Exists In Personal Electronic Devices, Federal, State and Local Law Enforcement and Non-Law Enforcement Government Actors. United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1995); United States v. Reed, 15 F.3d. Groh v. Ramirez, 540 U.S. 551, 557 (2004). So it comes as no surprise that a law enforcement search of an electronic device is now a routine part of any criminal investigation, regardless of how minor or serious the crime. This has caused the high court to tread cautiously when confronting new technologies, while making faulty analogies to earlier cases involving less sophisticated law enforcement techniques. endobj The Supreme Court grappled with a major case involving privacy in the digital age on Wednesday, discussing how to apply established legal rules to rapidly changing technology. In United States v. Ahrndt, 2013 WL 179326, *2-4 (D.Ore. In previous cases, the justices have gone through all sorts of contortions to avoid adapting existing privacy rules to new and evolving technologies. The question of whether the government’s action is a “search” or “seizure” is easily settled when it comes to the direct capture of electronic devices and a review of the data within them. On November 29, 2017, the U.S. Supreme Court heard Carpenter v. United States. In other words, the primitive beeper device in Knotts that enabled short term monitoring of a person’s location was constitutionally different than a GPS device or other technology that permits long-term monitoring. Governing Principles 2013) (en banc). 0000026643 00000 n

مهر ۱۰, ... To Apply the Fourth Amendment in the Digital Age, Go Back to Its Text . 0000006767 00000 n 2014). Be aware, though, that just because a warrant may not be required for some government actors does not mean the Fourth Amendment doesn’t apply. He explained that the phone booth in Katz was “an area where, 21 Katz v United States, 389 U.S. 347 (1967). Jones, 132 S.Ct. Riley noted that an argument that physical items are similar to computers was like “saying a ride on horseback is materially indistinguishable from a flight to the moon.” Id. These include: In Finley, the Fifth Circuit found an employee could assert an expectation of privacy in a cell phone issued to him by, and belonging to, his employer, which he was permitted to use for personal purposes. About the Author Burdeau v. McDowell, 256 U.S. 465, 475 (1921). 2013). 1991). Compare State v. Hinton, 179 Wash.2d 862, 319 P.3d 9 (2014) (expectation of privacy in text messages sent to another’s phone under state constitution) with State v. Patino, 93 A.3d 40, 55-58 (2014) (no expectation of privacy in text messages sent to someone else’s phone). Because these digital “papers” catalogue a person’s correspondence, affiliations and associations, electronic devices also trigger First Amendment protections. Although the employer had a property interest in the phone, that was not a dispositive factor in determining whether Finley had standing.

Even these sorts of non-criminal searches must be “reasonable,” and expansive searches motivated by a desire to investigate criminal, rather than civil, liability may violate the Fourth Amendment. It also includes non-law-enforcement government actors, such as government employers, O’Connor v. Ortega, 480 U.S. 709, 715 (1986); public school officials, New Jersey v. TLO, 469 U.S. 325, 335-37 (1985); and government administrative regulators or inspectors. How the Fourth Amendment Applies to Electronic Devices.

Whether a search is conducted by or on behalf of the government or by a private party depends on: (1)      whether the government knew and approved of the search or seizure; and.

2074, 2084 (2011). 2d 953, 958 (N.D. Ill. 2004). 1983). A Fourth Amendment “search” occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). calling on Congress to protect the data privacy of everyday citizens who use the cloud, Electronic Communications Privacy Act of 1986 (ECPA), Supreme Court Agrees to Hear ‘Carpenter v. United States,’ the Fourth Amendment Historical Cell-site Case. %%EOF 0000019696 00000 n 405 0 obj 1993) (citing Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 149 (1978)).

The Fourth Amendment applies when (1) a person, house, paper or effect (2) has been “searched” or “seized” by (3) a government actor. Numerous other cases document searches of workplace computers by both government and private employers. A Fourth Amendment “seizure” occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984); United States v. Chadwick, 433 U.S. 1, 13, n. 8 (1977). This doctrine was created before our data, pictures, and communications were regularly happening with third-party involvement, leaving us with a sizeable digital gap. Riley, 134 S.Ct. See, e.g., Cotterman, 709 F.3d at 964 (expectation of privacy in files stored on personal computer); United States v. Finley, 477 F.3d 250, 259 (5th Cir. 75, 104 (1994)). A. 945 (2012), a case dealing with police tracking of a car for almost one month with a GPS device, Justice Samuel Alito noted that while courts “must assur[e] preservation of that degree of privacy against government intrusion that existed when the Fourth Amendment was adopted. After Riley, it is clear that computers, cell phones, digital cameras and other electronic devices are clearly containers and “effects” under the Fourth Amendment. New York v. Burger, 482 U.S. 691, 700 (1987) (Fourth Amendment applies to administrative inspections designed to enforce commercial regulations); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534 (1967) (Fourth Amendment applies to administrative searches of building and housing inspectors). II. The Supreme Court has made clear that government attempts to seize and search materials that may be protected by the First Amendment demand that “the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’” Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). In his 2012 concurring opinion in United States v. Jones, 132 S.Ct. Critics say 4th Amendment protections are eroding in the process. Right now, essentially the only way you can avoid being digitally surveilled is to opt out of using certain technology, social media, or online services, which is virtually impossible in our modern world — and you shouldn’t have to quit these things in order to safeguard your own privacy. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971); United States v. Young, 153 F.3d 1079, 1080 (9th Cir. United States v. Lopez-Cruz, 730 F.3d 803, 805-06, 808 (9th Cir. The Ninth Circuit has explained that the “private information individuals store on digital devices” is “their personal ‘papers’ in the words of the Constitution.” United States v. Cotterman, 709 F.3d 952, 964 (9th Cir.

2013). Practice Point: Always check state law for more expansive protection. The standard for administrative searches by government employers and other officials in civil contexts is more lax than the standards governing searches and seizures by law enforcement. That is particularly true when applying constitutional principles in the 21st century. 2007); Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 0000002236 00000 n Read together, Jones and Riley provide a blueprint for arguing that the nature of digital devices means older cases involving physical items or less invasive government intrusions do not control questions of modern electronic search and seizure. Carpenter argued that the search and seizure of the cell phone records without a warrant is a violation of the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects.”.

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