The continuing discussion of how the Fourth Amendment applies to developing technology, raised by Orin Kerr’s “technology neutral” approach, an approach with which I’m somewhat less than thrilled, takes an interesting turn in digital forensic examiner Larry Daniels discusses the applicability of traditional legal concepts.
Orin takes the position that traditional concepts, developed through the caselaw over generations, should be applied by analogy to new and developing technology. My view is that we need to come up with new concepts rather than try to fit square pegs into round holes. At DFI News, Larry explains how, for all the very hard thinking that lawyers put into the subject of whether a search of a hard drive, and all the collateral nasty stuff found, this might technically fit into the plain view doctrine. His verdict? Lawyers don’t get it.
Kerr writes about the need to map the physical world to the virtual world of digital storage, because the laws are constructed based upon what happens in the physical world of a law enforcement officer examining a scene.
While this is the correct approach, he falls into the trap of mistaking a forensic examination of a computer hard drive with a search of a computer. This is the fundamental disconnect between understanding how plain view doctrine should be applied in digital evidence cases; what constitutes a search versus what is a forensic examination.
It’s a little unclear to me how Larry says that Orin’s approach is correct, while simultaneously saying that it reflects a “fundamental disconnect” between the physical world legal concept and its digital world application. I suspect he’s just being deferential. But Larry goes on to explain himself using the real world analogy of the file cabinet, a long time favorite of those who try to explain the concept of digital storage.
For example, in the physical world going through files in a filing cabinet would allow an item to come into plain view in the normal process of opening those files. However, if a document in a foreign language was present and the investigator did not read that language, it could not come into plain view since it would not meet the requirement of being immediately recognized by the officer as illegal or contraband material, even though the officer can plainly see the document.Conversely, Larry argues that anything that cannot simply be opened and recognized as contraband on a computer without use of any special tool or knowledge cannot be considered to be in plain view. Thus, if any idiot can find it and recognize it to be something bad, then it’s in plain view. If something more is needed, then it isn’t.
If you imagine that the hard drive is a room and in that room are filing cabinets (partitions i.e. C:, D), and in those filing cabinets are both folders containing files and files themselves, you have a good mapping of the virtual file structure of a hard drive to the physical equivalent of a room containing filing cabinets.
In searching through a physical filing cabinet, no special tools or skills are employed beyond the ability to open and look in folders and to read documents or peruse pictures.
If you equate that to a non-expert computer user sitting at the keyboard opening folders and looking at files while using no special skills or tools, you have basically the same operation. Any file the user can open and view without adding a tool, using special expert knowledge or forensic tools, should be able to regard evidence they see as part of the search as being in plain view. This is the essence of a computer search.
If we assume that Orin’s approach is correct, then Larry’s analysis makes sense. My problem is that I do not agree with Orin’s approach, in that the concepts that have been developed to address searches in the physical world are intellectually valid and applicable to the digital world. I am particularly fearful of the use of facile analogy to justify searches, when the rationale behind the concept’s development was never intended, argued, or even considered as applicable to the digital world.
Let’s take the file cabinet approach to the search of a hard drive, or more likely a mirror image of a hard drive, which in itself presents huge obstacles for 4th Amendment application. While there are some similarities in the operation of a hard drive that lend itself to the analogy to the file cabinet (folders and files), are an individual’s expectations of privacy in the contents of their hard drive similar to that of a file cabinet? While the analogy has been widely embraced, it’s validity only goes so far.
Computers are not file cabinets. They aren’t left in a physical location for anyone to open when we leave the room. We don’t expect anyone to grab our computer, turn it on, roam around the desktop and see what’s going on in there. We don’t put our personal correspondence into a file cabinet at the office, but we have personal emails saved on our computer. We don’t leave our diary in a file cabinet, yet we our personal thoughts are digitally held on our computers, often for years after they’ve been written and long after we’ve changed our thoughts. While the operation of a computer bears similarities, our use of, and expectations in, our computers are vastly different. Yet the law doesn’t recognize any of this by way of the file cabinet analogy.
Larry’s insight, from the technical side of how one searches a computer hard drive is critical to any legal analysis of the propriety of a search. Still, the question of whether every digital file that can be opened with a simple double click is in plain view fails to take into account the bottom line concept of whether this violates a reasonable expectation of privacy. Indeed, when it comes to emails, the current status of the law is that we have no reasonable expectation of privacy given that they are stored on our ISP’s server. Is everyone who uses technology now charged with the inherent understanding of exactly how all of this works such that any expectation of privacy in our digital world is lost?
This isn’t the way real people use or understand technology, and it shouldn’t be the way the law determines the scope of our rights under the 4th Amendment. We need a much better way, one that addresses the rights of people to be secure in their papers and effects. As much as it’s convenient to take old concepts and apply them to the new, albeit wholly unrelated, digital world, it fails to protect us. We need a new body of law on search and seizure that protects the people, as the 4th Amendment was intended to do.
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Brilliant post. I completely agree.
I think the most glaring fault of the file cabinet analogy is that it comes from the fact that computers “use” files and folders to store data – they don’t really, that’s an analogy in itself. Xerox chose it because it was a familiar way for office users to organise files rather than because that’s how it works. The file cabinet analogy ends up being a stack of metaphors to describe something alien to regular human experience – the data is actually encoded on a magnetic disc or electric circuit) in a format that no human can understand without mechanical translation (because no human can see the data) and I think it it’s unwise to then start building laws on top of that. Nothing can be understood from a computer unless it is requested from the drive and loaded on the screen. It’s the same with a video tape or a microfiche – you need to load it up in a specialist translating machine to make it understandable to humans and find the relevant bit to look at before it’s anything specific.
There’s very few ways in which a computer is -actually- like a file cabinet except in how it’s displayed to the end user, which is a bit like assuming that the mechanism that propels cars is the pedals.
Keep those great points coming.
We recently had a court administrator send a fax of a release order to our jail and was astonished and outraged when the jail administrator refused to release the prisoner. He also did not get it.
“Still, the question of whether every digital file that can be opened with a simple double click is in plain view fails to take into account the bottom line concept of whether this violates a reasonable expectation of privacy.”
Exactly. What happens when a doctor/lawyer/accountant keeps a large excel file with thousands of different clients’ information? Does a warrant for one suspects name in the .xls file mean all 10,000 clients are now in plain view? Doesn’t seem like a good solution.
It is my belief that the only way I can have any reasonable expectation of privacy pertaining to anything digital that I originaly create, is when I take the deliberate act of encrypting that data with a passkey known only to me.
The key words here are “originaly create” and “deliberate act.” Now the question is how do I open it again without some record of it in a log file on a computer system.
I have been working with technology since the early 80’s. What I have seen is a constant and steady effort by the science of digital technology to not only convert all things physical into digital but at the same time index, merge and integrate data into searchable databases.
It was mentioned by Stephen above that Xerox used the file cabinet analogy to simplify the complex. They were talking to the 50’s and 60’s generation.
Todays generation increasingly understands technology, how it functions and how pervasive it is. The part they don’t understand but they don’t understand the moral values of privacy and respect. They don’t seem to care.
This is no more evident than with the increased number of case where underaged teens are sending each other photographs on their cell phones and you tube that, under present laws, constitute child pornography. This is obvioulsy a place where the law needs some changing.
I believe the issue of reasonable expectation of privacy in the digital world will become increasingly difficult to prove as technology continues to rapidly evolve.
There is no way a legal system can adapt and chnage rapidly enough even if we throw out long held concepts.
It’s time to tell and teach everyone that, if you use any object that has, in it or on it, any electromagnetic function, it will not be private in the future.
Where will it stop? Small backpack size MRI systems capable of reading and interprating thought coming from the person next to you. Unbelievable? Not since Gene Roddenberry wrote his first book!
That’s largely the government position, that there is no reasonable expectation of privacy in the digital age. I refuse to accept that premise. We are not forced to chose between using technology and the evisceration of privacy. The law has the ability to set boundaries, technological development notwithstanding. It’s a rule that prohibits the government from invading those areas that society refuses to allow them to invade, regardless of what technological prowess enables them to do. It’s up to society and the courts to decide that our lives will not be an open book to the government just because they have the technology to make it so.
Our unreasonable search and seizure laws in the UK are very different to the constitutional right in the US but the idea behind both is that they’re used to curtail government power. The Crown (getting historical) could always physically send a team of heavies round your house to beat you up and read your stuff regardless of if it’s in a foreign language (they -could- get it translated), in code (they -could- put the effort in and get it decoded), on a computer (they -could- access the backing storage and read it off), locked in a box (they -could- break the box open), anything. It’s possible for them to just just torture you until you tell them what you know. The constitutional right exists to stop them doing that without sufficient judicial oversight (and just not doing the torture), even though it is entirely possible for them to do that. It doesn’t talk about what’s possible, it talks about what it’s OK to do.
It is currently possible to scan someone’s brain and work out what they’ve decided to do, even a surprisingly long time before the individual themselves knows that they’ve decided to do something. This is the current state of the art in neurological research but it’s entirely possible. I would say it is a massive invasion of privacy for a government to actually do it to their people, despite being possible, and it’s exactly what the right exists to prevent.
I don’t believe that it is commonly understood to the 2000s generation who have a My Documents folder or a home directory understand that the computer actually doesn’t use folders and files, simply because the hard drive is so impenetrable as a piece of technology and it’s so clearly presented on the screen in the hierarchical folders-of-folders-and-files style, otherwise we wouldn’t have jurists suggesting that we base laws on things that are in files and things that are in folders. We’d have them talking in terms of the hard drive if that was the case.
As far as I understand it plain sight is the ability of the executive to say “I think you’re planning to do this crime because I can see you have building plans for a bank vault open on your coffee table and I am legally able to see your coffee table.” It’s literally things that you can just see because they’re in plain sight. I think plain sight in computers pretty much extends to what the accused has left on the screen when the police come in, anything else requires using the computer to access backing storage and that’s a different kettle of fish. That doesn’t mean that the information on the computer is untouchable, it’s just not in plain sight.
What is in plain sight is the material that you download. In my case because I am interested in alcohol/drug policy as well as medical marijuana I have downloaded many files related to those subjects.
If I were to write an article about the history of bank robbing I would have to download files related to cracking safes. I would not be at all surprised if someone would notice an ask why is the person interested in safe cracking?
I’m unsure about that too actually – all your download is is electrical / light impulses along a wire. It’s definitely reaching outside of the household barrier but it’s still in a totally weird form for humans to understand at a glance. You need a computer to make sense of what the download actually is and not because they’re encrypted but just because humans don’t understand the transmission.
Similarly, telephone signals are sound impulses encoded and transmitted electrically down a wire and they’re not in plain sight because you need a tool to get the signals back into sound form again and humans can’t understand electricity. You can actually be in the room when either end puts it on speakerphone and you can hardly avoid understanding it in that form but the signals on the wire are just weird to humans without translation.
I think in both cases you’d be perfectly allowed to be surprised that someone unrelated to the conversation knows what you’re talking about by phone or what you’re downloading by computer.
Annoyed but not surprised.
I think this goes back to my “doesn’t talk about what’s possible, it talks about what it’s OK to do” point earlier. You might not be surprised that someone has done it but annoyed that they have or you might be surprised that they’ve done it despite the protections in place.
I think whatever you’d call the underlying emotion in the sentence “Oh, so you’ve intercepted my communications without my knowledge then” is what I meant by surprised, annoyed works too.
At the risk of being yelled at for getting off topic. Back in the days when computers were programed with plug boards I taught myself to read IBM cards and paper tape. It was also possible to read magnetic tape using a magnifier although I never did that myself. In other words your brain can process digital data if it is big enough to see with the unaided eye.
As far as sound is concerned I built a data system that used six discrete tones (two tones per bit) it was very unpleasant to listen to but I could sketch what was happening by listening to the sound because the modulation rate was under 1000 HZ.
The brain probably limits what can be done without an instrument to under 1000 HZ for data rates much too slow for modern technology.
My reply assumes that I am correct in understanding that things in a “foreign language” are exempted from plain view (I’m not American and the only area of American law I’ve formally studied happens to be Pennslyvanian cohabitation law, so I could totally be wrong). I’d have to say that punch cards/paper tape are pretty foreign as languages go but are possible to read if you have the skills, like any other foreign language. In the modern era we don’t even have that fingerhold and the only people who can actually read raw computer data have microscopically acute vision and the ability to visualise magnetic polarity or specific voltages of electrical charge. As a matter of interest I am actually surprised to read that you can see data on magnetic tape, I’m from the VHS/DAT era and spindles of smooth, shiny tape seems to be the order of the day there.
I think that my position, that computer data just isn’t suitable for the plain view doctrine because of what it is, relies on computer data being in a form which is either undetectable to unaided humans or only comprehensible to people with extremely specific skills and training in computers and I think that it is really difficult to convincingly argue that any computer data is immediately apparent as incriminating rather than being any other computer data which is not incriminating. I think it would be very convenient for law enforcement if everything in your My Documents folder or whatever was suitable for plain view but I think that this really does need a warrant and only things that are open on the screen etc and therefore actually in view are suitable.