The Fourth Amendment protects the people from unreasonable and unwarranted governmental intrusions. However, it is important to note that the Fourth Amendment does not protect individuals from invasions of privacy by private citizens. The private search exception to the Fourth Amendment has been universally accepted, but this exception is facing new problems in how it applies to computers, smartphones, and other like devices.
The Single Unit Approach
The Fifth Circuit attempted to tackle this problem in U.S. v. Runyan. Runyan’s soon to be ex-wife, Judith, discovered several computer disks in Runyan’s barn and upon further examination, found that some of the computer disks contained child pornography. She turned the disks over to law enforcement, and the agents subsequently performed a warrantless search of every single disk. The Fifth Circuit held that when a private party views even a single file on a computer disk, the police may subsequently inspect all content on the disk without a warrant. Therefore, even though Judith only viewed some of the images on the disks, the police were within their right to search each disk in its entirety. This view was later adopted by the Seventh Circuit in Rann v. Atchison, holding that “even if the police more thoroughly search” a digital media device than the private citizen, the police have not exceeded the scope of the initial private search and therefore have not violated the Fourth Amendment.
The File or Folder Level Approach
After Runyan and Rann, the private search doctrine seemed to be clear – as long as a private individual viewed a single file on a device, the police could search the remaining files without infringing on Fourth Amendment protections. However, in 2014, the private search doctrine became a little murky in how it might be applied in practice when the Supreme Court decided Riley v. California. In Riley, the Court held that computers, smartphones, and other like devices are different than most other “containers” due to the amount of information they hold so they deserve special Fourth Amendment protection.
But even after the Court’s decision in Riley, the law governing the application of the private search doctrine to electronic storage devices was at least consistent – as long as a private individual viewed a single file, the police could view the device’s remaining files. That is until Michigan’s own Federal Appellate Clinic argued U.S. v. Lichtenberger in front of the Sixth Circuit. In Lichtenberger, the defendant’s girlfriend, Holmes, opened a folder on defendant’s computer labeled “private.” Within this folder were several other folders labeled with numbers. Holmes opened up one of these sub-folders, viewed several images, and discovered child pornography. After Holmes called the police, she showed the responding officer several images, but she was unsure whether they were the same images, or even images in the same sub-folder, she had originally seen. The Sixth Circuit, relying on Riley, stated that computer searches were different than most other searches because of the vast amount of personal information stored on computers. The Court held that the subsequent governmental search exceeded the scope of Holmes’ original search because Holmes was unable to establish that she had showed the officers the exact same images that she had originally seen. Because she was unable to replicate the exact search she originally performed, the subsequent police search of the remainder of Lichtenberger’s computer was therefore a violation of the Fourth Amendment.
The Circuit Split
The Fifth and Seventh Circuits consider the computer as a single unit or container. Therefore, when a private individual accesses a single file, a subsequent governmental search of the entire device is within the scope of the private search. These Circuits rationalize this approach on the premise that an individual’s expectation of privacy in the contents of a container has already been compromised once the container was opened and examined by the private party. Therefore, even though Judith only viewed some of the files on the disk, the subsequent search of the entire disk was lawful because any reasonable expectation of privacy Runyan may have possessed was dissipated upon Judith’s private search.
Conversely, the Sixth Circuit suggests that a computer is not a single unit, but rather a combination of multiple containers. Therefore, the individual file(s) or folder(s) viewed by the private individual is the primary consideration in determining the scope of the private search. Under this approach, a private search of an individual file or folder allows the government to only search that exact file or folder, and any search beyond that exceeds the scope of the private search. Contrary to the Fifth and Seventh Circuits, the Sixth Circuit holds that an individual has a reasonable expectation of privacy to each individual folder on his computer. Therefore, only the folders that were actually viewed by Holmes could be viewed by law enforcement, and because Holmes could not recall which folders she viewed, the subsequent governmental search was unlawful because Lichtenberger had a reasonable expectation of privacy in each individual folder.
What’s Next?
The Lichtenberger Court stated that its holding is in line with the Fifth and Seventh Circuits; however, it is not difficult to see how their holdings are inconsistent. While the Fifth and Seventh Circuits measure the scope of the search under a single unit approach, the Sixth Circuit measures the scope on a file or folder based approach. These different approaches resulted in different results for the individual defendants, and it is very possible that the Supreme Court will take up this issue in the near future.
———————————————————————————————————————————-
Joel Varner is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2017.