BLOG BULLETS:

• Use analogies to pre-computer Fourth Amendment case law for arguments on computer searches.
• There may be more than one analogy to consider.
• The analogies aren’t always helpful, so keep in mind arguments that computer searches are different and so protections should be greater.

NOW THE BLOG:

In my last two posts, I talked about the brave new world of computers, computer searches, and the Fourth Amendment. I promised more in another post, and this is that other post. I thought I’d share some more ideas about some other issues that are out there in the computer search area and how and whether non-computer Fourth Amendment case law ought to extend. There’s several examples out there in the reported cases already.

One example is a case of mine in which I didn’t prevail, but which provoked a strong dissent and an order that the government respond to my petition for rehearing en banc. What’s the analogy for consent search purposes when two people are using a computer and they each have their own logon? Can either person consent to a search of the whole computer, as if it’s a house or an office with multiple rooms jointly shared by both? Or are the areas of the computer accessed from the separate logons like separate bedrooms or offices within the larger house or larger office that only the person using the particular bedroom or office can consent to a search of? Does it matter whether the user has his area of the computer password protected? Is password protection like a lock and is a lock required? For a Ninth Circuit case analyzing these issues and the analogies (with some other complicating nuances that I won’t go into here),see United States v. Stanley, 653 F.3d 946 (9th Cir. 2011), and for a case that Stanleydistinguishes because the user there did have his area of the computer password protected, see Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001). For a contrary view in Stanley, see the dissenting opinion by Judge Beezer, which is of course emphasized in the pending petition for rehearing en banc.

What about border searches? Remember how officials at the border can search your property with absolutely no probable cause or reasonable suspicion at all – under the border search exception? Does that let them look through the laptop computer you took on your business trip or vacation that may have almost all – or at least most – of your private life – and/or confidential and privileged business records – on it? See United States v. Arnold, 454 F. Supp. 2d 999 (C.D. Cal. 2006) for Central District of California Judge Pregerson’s view that it doesn’t, at least not without reasonable suspicion, but see United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008) for an initial Ninth Circuit view that it does. Then see United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011) for a Ninth Circuit panel’s view that it lets them take the computer away and search it at a forensic computer lab 170 miles away and two days later. But note a petition for rehearing en banc was subsequently granted in Cotterman, see673 F.3d 1206 (2012), the case was argued en banc last June, and so an en banc opinion will presumably issue in the not so distant future.

Suppose you have your computer password protected and/or encrypted? Can the government make you give up the password? For cases addressing this issue – adversely, I’m afraid, though only at the district court level and in situations where there was probable cause to seize and search the computer – see In re Boucher, summarized with links to both the magistrate judge and the district judge opinions athttp://en.wikipedia.org/wiki/In_re_Boucher, and reports of a Colorado federal case that can be found athttp://www.denverpost.com/breakingnews/ci_19815241. Consider not just Fourth Amendment arguments on this question, but also the Fifth Amendment concerns illustrated by what’s known as the “act of production” doctrine, discussed in cases such as United States v. Hubbell, 530 U.S. 27 (2000);United States v. Doe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976); and In re Grand Jury Proceedings, 759 F.3d 1418 (9th Cir. 1985). This doctrine holds that the FifthAmendment precludes forcing someone to produce documents when the act of producing the documents would incriminate the person producing them by being an implicit admission of some incriminating fact such as the documents’ existence, possession of the documents, and/or the authenticity of the documents.

These cases illustrate how analogies to pre-computer Fourth Amendment case law may guide the analysis of computer searches. The analogies may lead to bad results as well as good results, however, so remember that computers, in the words of one Ninth Circuit opinion, “involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers.” United States v. Payton, 573 F.3d 859, 862 (9th Cir. 2009). Keep in mind this Payton opinion and the en banc opinion in Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir.2010) (en banc), and a wonderful reading of those opinions by a magistrate judge in In the Matter of the United States of America’s Application for a Search Warrant to Seize and Search Electronic Devices from Edward Cunnius, 770 F. Supp. 2d 1138, 1146-52 (W.D. Wash. 2011), if the analogies lead down a dangerous and seemingly dangerous road. And as always, keep those creative juices flowing.