Turning Off Screensaver to Look at Suspect’s Facebook Wall: A 4th Amendment Search

Suppose the police come over to your house, because they suspect that you have made Internet postings threatening violence. You invite them into your house (eliminating the need to obtain a warrant to enter your home), and they begin looking around your room. One officer sees that your computer is in its screensaver mode, and he moves the mouse or presses a key, causing it to come out of that mode. He is then able to plainly see your Facebook wall, where you have made posts threatening to commit violent acts.

Does this constitute a “search” under the 4^th Amendment? According to at least one court, it does (also reported here).

This is a very interesting case, and illustrates the difficulties that can occur when values we have held dear for centuries (a right to privacy, for example) and the legal means we use to protect them (the 4^th Amendment’s protection against unreasonable search and seizure) are transferred into the digital world. After all, privacy didn’t suddenly become less important when we started storing much of our private information on computers. And the right to be free from unreasonable searches and seizures didn’t cease to be a good means to protect our privacy, either.

However, the nature of digital information does complicate things at a practical level. Digital information is fungible, meaning that it can be moved freely between different devices. Furthermore, social media seems to have significantly altered our expectation of privacy when it comes to the internet.

Before continuing, I should provide a basic primer on the law of the 4^th Amendment. The 4^th Amendment prohibits “unreasonable” searches and seizures. It also lays out the conditions under which a search warrant may be issued. It does not, however, say what makes a search unreasonable, or when a warrant is even required to conduct a search. As is often the case, the courts have had to fill in the blanks.

Over the years, a general framework has emerged: any “search” is any intrusion into an area of a person’s life (whether the intrusion is physical, such as by entering a house, or intangible, such as intercepting an email) in which they have a reasonable expectation of privacy. Any search conducted without a warrant is presumed to be unreasonable. This means that, in the majority of cases, in order to conduct a lawful search, the authorities need to obtain a search warrant from a court, by demonstrating that they have probable cause to believe that the evidence they’re looking for will be found at the location they’re searching. There are a few exceptions, however. Generally, when a person consents to a search of their property, or there are circumstances that make getting a warrant impossible (hot pursuit, or other emergency, for instance), a warrant isn’t required.

In this case, it appears that none of the exceptions to the warrant requirement applied. So, the main question the court had to answer is whether or not the officer’s conduct constituted a “search.” If it does, a warrant would have been required. If not, no warrant would be needed. Because the officer didn’t have a warrant, the question of whether or not the evidence could be used in court hinged on the “search” question.

The court reasoned that this does constitute a search, though it seemed to wrestle with the question quite a bit, noting repeatedly in its opinion that this is a close call.

However, I agree with the decision that the court ultimately arrived at.

You can reasonably argue that we’ve truly been in the “information age” for about a decade. But, no matter when you believe it started, there’s no doubt that the information age is upon us, and virtually every aspect of society, from how we do business, to how we interact socially, to how we view privacy. The law, as a reflection of a society’s values, needs to evolve in order to match this new reality. In general, the law is doing a decent enough job of adapting to the digital era, even if this adaptation is a bit slower than some would prefer.

One of the key points of this case is that there can be a search, for 4^th Amendment purposes, of a person’s property even if there is no physical intrusion. When the 4^th Amendment was drafted, the only way to “search” a person’s property without physically intruding was to look through their window.

Obviously, the information that could be gleaned from such a search was usually very limited, and didn’t really concern the framers of the 4^th Amendment. Nowadays, however, we have infrared cameras that can see through walls, devices that can listen in on phone calls and monitor email, and software that can monitor everything that’s done on a personal computer, all without a single personal encounter with the suspect.

Ultimately, accessing information on a personal computer breaks the barrier between public and private. A computer should be viewed as a virtual file cabinet (one that happens to have effectively unlimited storage capacity), and accessing any information stored on it, unless it is already in plain view during the search (visible on the screen before the officer manipulates the computer in any way).

This does raise the issue of what would happen if the officer had accidentally (for real, I swear!) bumps against the desk, which moves the mouse and takes the computer out of screensaver mode, and then views what’s on the screen. However, I think we should err on the side of presuming that any information a police officer collects is the result of deliberate conduct on his or her part, to discourage police officers from having “accidents” that just happen to give them access to an area outside the scope of their search.

While consistent and strict application of the 4^th Amendment might sometimes lead to seemingly unjust results, and almost certainly allows some guilty parties to go free, I believe that that’s a fair price to pay for freedom.