Fourth Amendment Rights in Files Stored on Password-Protected Websites:

Does a user have a reasonable expectation of privacy in their files — including images of child pornography — posted on a password-protected website? In a decision handed down last week, Judge Stearns of the U.S. District Court for the District of Massachusetts concluded that the answer is “yes.” At the same time, Judge Stearns refused to suppress the evidence in the particular case, finding that its collection was the fruits of a private search by a tipster. The case is United States v. D’Andrea.

  Unfortunately, the facts of the case are pretty gruesome, so here is a very brief version. The Massachusetts Department of Social Services received a call from a person reporting that another couple was molesting their 8-year old daughter and putting pictures of the molestation on a password-protected Sprint PCS website. The caller indicated that she was an ex-girlfriend of the man involved, and she told the officials the username and password of the website to access the pictures. A DSS official entered the username and password, accessed the website, and confirmed that images of the molestation were present. The official contacted the police, and the police obtained a warrant to search the couple’s home. The woman was home when the warrant was executed; she was taken into custody and confessed to the crime. When charges were brought, both the man and the woman moved to suppress the images and the confession on the ground that they had a reasonable expectation of privacy in the stored files in the account and that the government access to the account without a warrant had violated the Fourth Amendment.

  In his opinion, Judge Stearns first concludes that a person has a reasonable expectation of privacy in the contents of files stored on password-protected websites. Judge Stearns relies on two authorities. The first authority is Professor LaFave’s treatise:

Professor Warren [sic] LaFave, a preeminent authority on the Fourth Amendment, argues that a person who avails herself of a website