Taking A Computer Out of Screensaver Mode to See Suspect’s Facebook Wall Is a Fourth Amendment Search

The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?

The facts: The local police received a few citizen calls about a threat posted on Craigslist regarding possible planned violence at a local shopping mall. The police contacted Craiglist and obtained contact information for the person who posted the threat. They visited the man at his home, and the man invited the officers inside. While the officers were present in the home, an officer saw a laptop computer that was either off or in screensaver mode. The officer touched a key or moved the mousepad, and the computer came out of screensaver mode. The officer could then see the contents of the screen, and those contents revealed the suspect’s Facebook wall. The Facebook wall contained a “status update” in which the suspect discussed the mall and wrote that another mall was next, and it also showed that the defendant had “liked” a group about the need to change the mall. The police arrested the suspect and took a way the computer. After being charged with making a threat, the suspect-turned-defendant moved to suppress the information relating to the threat found on the computer. He argued, among other things, that taking his computer out of screensaver mode to see the Facebook Wall was a “search” that required some sort of justification under the Fourth Amendment.

The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

My view: That ruling is correct. As I argued in Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005):

Accessing information from a computer breaks the seal between public and private, much like entering a home or opening a package. . . . It means, among other things, that accessing information from a computer ordinarily should be a Fourth Amendment “search” that requires a warrant or an exception to the warrant requirement. In general, an investigator who sees a suspect’s computer and starts looking through files is conducting a Fourth Amendment search.

. . . The best answer is that a search occurs when information from or about the data is exposed to possible human observation, such as when it appears on a screen, rather than when it is copied by the hard drive or processed by the computer. I will label this the “exposure-based approach” to interpreting Fourth Amendment searches. . . .

First, focusing on the exposure of data most accurately transfers our physical world notions of searches to the context of computers. Entering a house is a search of physical space because it exposes to human observation the otherwise hidden interior of the house. In the computer context, there is no need to focus the “search” inquiry on a physical action like entry; the law can look directly to exposure. The exposure-based approach focuses doctrinal attention on the key question from the perspectives of individuals and the police alike–whether and when a person’s information will be kept private or exposed and shared with the police. A computer is akin to a virtual warehouse of private information, and the exposure-based approach allows the courts to monitor and require justification for each retrieval of information from the warehouse. It imposes the Fourth Amendment as a barrier to the retrieval of information from nonobservable form to observable form.

Thanks to FourthAmendment.com for the pointer.