Close, But No Privacy

A computer is more like:

  1. A safe
  2. A file cabinet
  3. A suitcase
  4. A garbage can
  5. A computer

The answer to this question will determine whether you spend a lengthy period of time as a guest of the federal government at one of their lovely vacation spots.  When it comes to technology, the question of which precedent to apply is based largely on which analogy a judge prefers, which in turn is based on either a judge’s grasp of technology, which is not always the same as, say, more attuned users, or the analogy that produces the desired result.

At Volokh Conspiracy, Orin Kerr has dredged up an old Kentucky opinion from 2003, United State v. Morgan, denying suppression of child porn. Yes, child porn was there even back then.  Morgan tried to eliminate the images from his computer, using a program called “Internet Eraser.”  His wife, who suspected what he was up to, used a program of her own that took a screen shot every 10 seconds. She wasn’t pleased with what she learned, and ratted her husband out.

While Morgan’s wife turned over his computer, and as a common user, consented to the search, the court added this:

By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.

Yes, remember the old abandoned trash approach of Greenwood, except that the object there was actually abandoned trash? Are deleted computer files the same? Obviously not, but the problem is the resort to analogy to pigeonhole technology.

Whenever these issues arise, the geeks want to argue technical jargon while the government wants to pull out analogies involving horses and buggies. The reaction is often an approach that suggests that technology has killed any expectation of privacy regardless of who is engaged in the debate.

What’s interesting here is that this old opinion reflects how we now find ourselves  down a road where there is no winning, how the flawed comparisons have served to create a secondary body of law with regard to technology that wasn’t sound to begin with and, given how a bad argument once adopted blindly perpetuates itself, hasn’t gotten any better with age.

What are the chances that the courts will wake up one day and come to the realization that technology cannot be accurately analogies with anything, that it is a fundamentally different medium and requires a new, sui generis, approach?  About as good as the  court finally admitting that drug sniffing dogs aren’t magic.

The scholarship behind these decisions hasn’t helped much.

There have been  numerous  discussions  about the propriety of border laptop searches, as well as  Orin Kerr’s  theory of  technology neutral application of search and seizure law to new technology.

Tacitly applying Kerr’s tech neutral approach, the government and courts have circumvented the issues raised by these border searches via the use of analogy to old law, comparing a laptop to a suitcase or file cabinet.  Dan Solove at  Concurring Opinions  proffered an approach he calls 4th Amendment Pragmatism as a substitute, eliminating the Katz reasonable expectation of privacy test for “problems of reasonable significance.”  It seems that this intrusion would fail under either test, and is permissible only because of courts’ reliance on the rubric developed at a time when absolutely nothing comparable to a laptop computer was under consideration. 

At the time of these discussions, my guess is that fate of computers had already been sealed. Well before anyone was arguing over the propriety of using 4th Amendment analogies to explain what happens in microchips and people’s expectations, there were decisions like this, unknown at the time, that had already gone to a place where no court should have gone.

I would expect both academics and prosecutors to fundamentally disagree, that the evolution of law by analogy to new concepts, to new technology, is both the appropriate and necessary approach. It’s prudent. It modest, It promotes consistency.

And that’s why privacy, moribund before, was dead on arrival when it came to technology.

The next question, much like whether there is ever a chance that junk science, once allowed, can ever be eliminated from our legal mythology, is whether there will be any support within either academia or the bench to recognize that tech is new, different, and not fairly analogized to physical world comparison and old precedent.  Unlike dog hits, tech offers an opportunity where the courts won’t have to admit they blew it in the first place and embraced a ridiculous religious belief when there was woefully inadequate science behind it.

Tech changed. It changes constantly. Because of this, the courts can take the position that precedent can’t keep pace, that old analysis can’t be adequately applied, and that new changes in technology change everything.  In other words, there is a conceptual edge to stop our sliding down the slippery slope.

Or we can just throw privacy out with the deleted computer files.  But we didn’t have both in 2003, and if nothing changes, we will never have privacy in the age of technology again.

4 comments on “Close, But No Privacy

  1. Ron Coleman

    Great post. I have been saying much the same thing about an area of law far less important in terms of liberty (IP) for years. The computer age has paralyzed Congress, and instead of making policy decisions, which is its job, has left it to the courts to try to analogize far beyond where any analogy can go.

    Why, it’s so right what your wrote that I’m going re-write again myself.

  2. j a higginbotham

    Do the government/prosecution analogies differentiate between:
    1) merely deleting a file/using a disk cleaning program
    2) having a file on a device/having an encrypted file on a device?
    The intent (to this civilian) ought to matter.

  3. Danq

    ++ to this (so to speak)

    What is the legal status of data that:

    1) Traverses publicly available networks when some are publicly subsidized?

    2) Is stored in a physical or virtual container shared by others?

    3) May (or may not) be transmitted in an encrypted protocol?

    4) The type and level of encryption may (or may not) use publicly available algorithms, or algorithms that are publicly know to be effortlessly circumvented?

    5) When the “owner” of the data may have intended to encrypt, but the software that manages that intention failed (or did not fail).

    There are hundreds, perhaps thousands more hypothetical permutations.

    The process followed and tools used to develop technology changes at nearly the same pace as technology. That paradigm works.

    The question I ponder frequently: can the law compete with that ability to change or should it?

  4. Dr. Sigmund Droid

    Sometimes a cigar is just a cigar . . .

    Unless it’s been dipped in Monica Lewinsky by the president, then it certainly is cause for an impeachment proceeding . . .

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