Outline of issues involving search and seizure—The computer user's expectation of privacy

Cumulative Supplement

Cases:

Expectation of privacy in e-mails sent from office computer: Accused had a subjective expectation of privacy in the e-mails she sent from her office computer and in the e-mails that were stored on government server; accused had a password known only to her, and system's log-on banner described access to "monitor" the computer system, not to engage in law enforcement intrusions by examining the contents of particular e-mails in a manner unrelated to maintenance of the e-mail system. U.S.C.A. Const.Amend. 4. U.S. v. Long, 64 M.J. 57 (C.A.A.F. 2006); West's Key Number Digest, Military Justice 1080.

Attachment to university network: For Fourth Amendment purposes, defendant's objectively reasonable expectation of privacy in his computer was not eliminated when he attached computer to network of university at which he was a student; there was no announced monitoring policy on the network, university's computer policy stated that in general, all computer and electronic files should be free from access by any but the authorized user of those files, and defendant's computer was located in his dormitory room and was protected by a screensaver password. U.S.C.A. Const.Amend. 4. U.S. v. Heckenkamp, 482 F.3d 1142 (9th Cir. 2007); West's Key Number Digest, Telecommunications 1439.

Workplace computer: Defendant did not have a reasonable expectation of privacy in his workplace computer, and thus, he did not have standing to challenge search of computer's hard drive under Fourth Amendment; although defendant had to use individual log-in to access workplace computer, personnel from employer's internet technology (IT) department had complete administrative access to all employees' computers, employer prohibited private use of computers by employees, employer had installed a firewall that monitored employees' internet traffic on workplace computers, IT department reviewed log created by firewall on a regular basis, and employees were apprised in training and in employment manual of employer's monitoring efforts. U.S.C.A. Const.Amend. 4. U.S. v. Ziegler, 456 F.3d 1138, 153 Lab. Cas. (CCH) P 60250 (9th Cir. 2006); West's Key Number Digest, Obscenity 7.6.

In prosecution for possession of child pornography, professor did not have a reasonable expectation of privacy in relation to university computer he used in his work, and therefore was not entitled to a Franks hearing or suppression of evidence found on computer; university's policies and procedures reserved right to audit and monitor Internet use and warned that information flowing through the university network was not confidential, users of university computers were warned of penalties for misuse and of university's right to conduct inspections, university owned computer and explicitly reserved ownership of data stored within it, professor's relationship with computer was incident to his employment, and latent pornographic images in computer were not under professor's immediate control after he attempted to delete them. U.S.C.A. Const.Amend. 4. U.S. v. Angevine, 281 F.3d 1130 (10th Cir. 2002), cert. denied, 123 S. Ct. 182 (U.S. 2002); West's Key Number Digest, Obscenity 7.6.

Expectation of privacy in password-protected files and wife's consent to search: Although defendant had reasonable expectation of privacy in password-protected files on computer in his home, defendant's wife had substantial, legitimate, and overarching interest in all aspects of computer, such that it was objectively reasonable for defendant to understand that his privacy was not absolute, but contingent on wife's decisions, and thus, wife's consent to police search of computer was valid; wife leased computer in her name, alleged fraud and online activity that police were investigating occurred in accounts in wife's name, computer was located in living room, a common area of the home, computer was on when officers entered home, although defendant had purportedly left the area, and files were not encrypted. U.S.C.A. Const.Amend. 4. U.S. v. Buckner, 407 F. Supp. 2d 777 (W.D. Va. 2006); West's Key Number Digest, Searches and Seizures 178.

After a computer repairman summoned police upon discovering child pornography files while repairing defendant's computer, defendant had no remaining expectation of privacy in files which repairman had not previously opened, and therefore officers' viewing of such files did not violate Fourth Amendment by exceeding scope of previous private search, even though some different files were opened during the second viewing; officers were only examining more items within same folders. U.S.C.A. Const.Amend. 4. People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003), reargument granted, 1 Misc. 3d 638, 2003 WL 22283378 (N.Y. Sup 2003); West's Key Number Digest, Federal Civil Procedure 7.6.