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.
Anderson says:
I’m curious what’s the result if the officer accidentally (no, really) bumps against the desk and jars the mouse, thus suspending the screen-saver and bringing up the data.
Seems there ought to be some parallel non-computer cases (accidentally jarring something open).
September 27, 2011, 12:01 pmJeff J says:
It’s interesting that the government argued the officer’s actions were aimed at seizing the computer, not exposing the screen contents. Did the suspect grant consent for the officer to seize the computer? If so, wouldn’t the consent to seize cover the officer’s actions? Let’s say a suspect consented to the seizure of a file cabinet. If one of the drawers slid open while the officers were carrying it off, revealing a gun or some other obvious contraband, wouldn’t some combination of the consent and plain view doctrines protect the officers?
September 27, 2011, 12:05 pmSteve says:
The ruling suggests that the police were authorized to seize the computer, but not to search it. Can that be right?
September 27, 2011, 12:06 pmkarrde says:
Wait…does anyone run a non-password-locked screensaver these days?
If you have a modern flatscreen, image burn-in isn’t really an issue. Even when image burn-in was an issue (on CRT’s), the screensaver turned from a ‘saver’ into a security tool more than a decade ago.
How does lack of individual effort to secure data translate into an improper search or seizure?
I’m curious how a warrant to search the premises where the computer is located would allow (or deny) access to documents stored in a file cabinet on the premises.
If the cabinet has a lock, but the lock is not engage, is opening the drawer of the cabinet equivalent to touching the keyboard to stop the non-password-locked screensaver?
September 27, 2011, 12:10 pmSteve says:
At home? Of course I do.
September 27, 2011, 12:13 pmGiant Frog says:
The officer touched a key or moved the mousepad.
Exceeds authorized access.
September 27, 2011, 12:17 pmJeff J says:
Ok, according to the opinion, the suspect consented to a search of his apartment for “weapons or contraband.” The officer decided to seize the computer as “possible evidence” because the suspect “had been taken into custody.” There was no consent to seize the computer. I doubt the suspect’s general consent to search “for contraband” would cover a seizure of the computer. But . . . the court held that the plain view doctrine covered the officer’s seizure of the computer because it was evidence concerning the online threats. And the court held that the manipulation of the computer to reveal the screen contents (even if done to seize the computer) was an unauthorized search. (The court then held that the suspect’s later consent to search the computer cured the taint).
September 27, 2011, 12:20 pmHizzle says:
I agree that this is a search, without a doubt.
For me the more interesting question (as usual) is the exclusion one. The magistrate judge’s “this is a search therefore we should suppress” approach (maybe the judge elaborates more in the opinion, which I haven’t read) ignores the wedge that the Court has driven between right and remedy. This doesn’t strike me as a classic “good faith” case but I’m not sure exclusion is appropriate under the current “last resort” approach.
September 27, 2011, 12:24 pmFub says:
Two things strike me as odd or ambiguous here.
First, from the ruling:
Since when do courts ruling on evidence exclusion “recommend”? I thought they ruled.
Second, from Prof. Kerr’s synopsis:
Recalling the recent suits against Craigslist by various state AGs, I wonder whether the police merely contacted Craigslist and asked for the user information, or obtained a subpoena.
Is Craigslist, as a result of bullying by state AG lawsuits, now just rolling over and giving any police any customer information they ask for without even the empty formality of a subpoena?
If so, then is that at least a baby step down a slippery slope where at bottom any old vindictive citizen can call police with a bogus report about online activity by an “enemy”, and police will pick up a phone, call the provider, get a name and address, and pay a visit to the “suspect”?
At least the formality of a subpoena creates a record of police activity beyond what the police choose to create in internal reports.
September 27, 2011, 12:36 pmBill says:
what about inadvertent/unintentional actions?
alternate hypothetical: while conducting an authorized search of items on a shelf above a computer, officer drops something; it bumps the mouse. computer comes out of screensave and displays incriminating information…
September 27, 2011, 12:40 pmBruce Hayden says:
The analogy I was thinking of was opening drawers. If something is in a closed drawer, an officer shouldn’t probably get away with peeking into it, and then claim that the contents were in plain sight.
If the officers were indeed searching for weapons, then there was an exceedingly small likelihood that such would be found in the computer.
September 27, 2011, 12:45 pmKilroy says:
Shouldn’t it depend on whether he had his account set to private or public? No expectation of privacy if facebook is set to public.
September 27, 2011, 12:48 pmBruce Hayden says:
Yes, Your Honor, we were investigating the defendant for having made online threats, and yes, they would most likely have been made through use of the one computer in the house, and yes, at the time that we entered, the screen on that computer was not visible due to the use of a screen saver, and, yes, we did not have a warrant to search the computer, and yes, when we were checking things out in the room, rummaging around on the shelf above that computer, something fell off the shelf, jarring the computer (likely keyboard or mouse), and the screen saver cleared, and then displayed the evidence in question. Nevertheless, the government believes that the display of that information was totally inadvertent and should be allowed as a result.
September 27, 2011, 12:52 pmkarrde says:
I must be paranoid.
Every computer I own (or use at work) has the screensaver set to lock with a password.
September 27, 2011, 12:53 pmOrenWithAnE says:
Doesn’t Scalia’s “even one inch” standard from AZ v. Hicks govern this almost directly? In that case, officers lifted up a turntable to read its serial number without probable cause …
September 27, 2011, 12:58 pmOrenWithAnE says:
BTW, Orin, any (preliminary) thoughts on the 4A question presented in the Al Haramain v. US (OFAC) ruling from the 9CA last week?
September 27, 2011, 1:01 pmOwen H. says:
I question why the guy even let them in to begin with. It cannot ever help you, innocent or guilty.
I view it as similar to lifting a sheet of paper on a desk to see what’s under it. Not in plain view. If a cop tripped and knocked the paper off, same thing. Otherwise it becomes too easy to create “accidents” to do whatever they want.
September 27, 2011, 1:17 pmJay says:
This is a recommendation by the Magistrate Judge to the District Judge. Either party can file objections to the Rec, and then the DJ will make a final ruling.
September 27, 2011, 2:26 pmanon says:
Don’t cops carry throw-down cats just for the purpose of accidentally typing on keyboards?
Every movie I’ve seen since 1993 or so shows cops usually have a throw-down cat tucked in their socks.
“Your honor we were searching the premises for weapons when a cat ran into the house and jumped on the keyboard and logged into facebook”
September 27, 2011, 2:42 pmcaptcrisis says:
Though you would be within your rights not to let the police in, it would be very dumb to exercise that right, unless you had a lawyer in your closet 24/7 ready to jump out.
September 27, 2011, 3:01 pmDan Weber says:
Wait…does anyone run a non-password-locked screensaver these days?
Lots of people have habits different than yours.
The flavors of Linux and Windows I use automatically go into a screensaver mode after a certain amount of time but don’t lock the screen. Setting it up to need a password is a deliberate step.
September 27, 2011, 3:44 pmHasdrubal says:
Wait, what? That is exactly the opposite of every other thing I’ve ever heard regarding searches. If the police want to talk to you, you at most step outside, close the door, and talk to them.
Or are you talking about police with a warrant?
September 27, 2011, 3:57 pmTatil says:
Cops cannot enter your house without consent or search warrant, even if you don’t lock your front door.
September 27, 2011, 4:07 pmNM Kerr says:
If you allow “accidents” to enable a search there will be a lot of “accidents”.
September 27, 2011, 4:48 pmanon says:
http://www.youtube.com/watch?v=xySLutnDOnc
Max: Don’t ever invite a vampire into your house, you silly boy. It renders you powerless.
September 27, 2011, 4:49 pmSam Emerson: Did you know that?
Edgar Frog: Of course. Everyone knows that.
Tatil says:
Not necessarily. It depends on the type of people you share your home with. :)
September 27, 2011, 5:06 pmOwen H says:
You don’t?
Why is it dangerous to assert your rights, and not allow police to trample them?
September 27, 2011, 7:07 pmflexyourrights.com
Fub says:
Thanks. My confusion. I didn’t get that it was a recommendation from MJ to DJ from reading the synopsis and quotes above, nor find a link to the decision. So missed the point.
September 27, 2011, 7:37 pmC says:
Here’s a parallel computer case:
Have a password prompt appear from screensaver mode.
Anything less is using the “screensaver” feature only to extend the monitors lifetime.
The computer owner did not use the access protection features, like a User role with a login prompt. Ask any federal government worker about the Common Access Card (CAC), which locks the screen when the card is removed from the keyboard.
September 27, 2011, 7:45 pmOwen H says:
So if they knock something over during the visit “accidentally”, they get to keep whatever falls into view due to their “mishap”? If he hadn’t wanted his nightstand to open up if knocked over he should have locked it?
September 27, 2011, 8:35 pmTatil says:
Unlocked doors are only there to prevent draft. Feel free to open them.
September 27, 2011, 9:32 pmSam P says:
Depending on how sensitive the mouse is and the sturdiness of the furniture it is on, merely closing a door firmly might be enough to turn off a screensaver.
September 27, 2011, 9:38 pmRex Judicata says:
How did the inevitable discovery doctrine not come into play here, Orin? After all, if the incriminating information was posted on the defendant’s Facebook wall, presumably the police could have just turned around and accessed it on their own computers.
September 27, 2011, 10:20 pmDana Altman, Esq. says:
This is an interesting case that could produce the following results:
1. More people will set passwords on their screensavers.
2. More peripheral devices will be “accidentally” bumped.
3. More people will set their Facebook walls to private.
I personally don’t have an expectation of privacy on ANYTHING on Facebook, regardless of the privacy settings. Members are their product that they are selling.
Obviously, this didn’t all under the plain view exception to unwarranted searches due to the screensaver. I think that would’ve been a stretch even if the mouse was accidentally bumped.
September 28, 2011, 11:24 amSeaDrive says:
Accidents aside, if the police were going to seize a running computer, wouldn’t they have to turn it off? Without looking at the screen?
September 28, 2011, 11:57 amJarbidge says:
FWIW, there are devices designed so they can be inserted into the plug or cord and continue to supply power after the cord is pulled out of the wall.
There has also been work to rapidly cool the memory – in some cases, if you cool it soon enough after power off you may be able to recover substantial parts of the data later. This is of interest when the suspect has, say, encrypted the disk and powers down the computer when the battering ram hits the door.
September 28, 2011, 12:59 pmA New Fourth Amendment Concern: 'Don't Touch That Mouse Pad!' | Main Justice says:
[...] here is a close call because the officer did not actively open any files,” she held, as Kerr recounts on The Volokh Conspiracy blog, run by Professor Eugene Volokh of the UCLA School of Law. “A [...]
September 28, 2011, 2:07 pmCase Blurb: United States v. Musgrove « Legal Biscuit says:
[...] the Fourth Amendment both wrote really great blog entries about the case. Please check out the Volokh Conspiracy’s post and the Fourth Amendment.com’s post. Share this:TwitterFacebookLike this:LikeBe the first to [...]
September 29, 2011, 12:12 amNoah David Simon (@CriticalAnalyst) says:
I agree with the finding and not the reasoning. files most certainly were opened by ending the screen saver. There is a level of discretion that the court was allowed to decide what is a file and what is not in this finding. The court does not seem to be aware of this. The right decision would of been to decide the intent of the officer. how was the machine bumped? I suppose if I were this police man I would of lied.
September 29, 2011, 4:42 amJohn Muller says:
I assure you it is.
I have a 24 inch LCD flatscreen (LG brand Flatron, 1920×1200…) that has horrible burn in, if I leave a video paused for a few hours (sadly, video players block the screensaver even when paused) I can see the outline of the image for days afterward, along with the dark ‘smear’ of all the built up wear along image edges.
October 6, 2011, 4:22 pm