Applying law to computers and the Internet often requires a choice between applying the law from the perspective of physical reality or the perspective of virtual reality. When courts look to physical reality, they model the facts based on how computers and the network actually work. When courts look to virtual reality, they model the facts based on the perspective of a user who doesn’t know how computers work.
I was reminded of that choice when I recently came across United States v. Morgan, Crim No. 03-25-DLB (E.D. Ky. October 15, 2003). In this case, the defendant regularly viewed child pornography from an online newsgroup and then tried to delete the files using a program called “Internet Eraser.” The defendant’s wife suspected that her husband was viewing child pornography, so she installed a program that took screen shots of the computer every 10 seconds. The defendant’s wife later viewed the screen shots, saw child pornography images from when her husband was using the computer, and turned over the screenshots to the police. She also consented to a government search of the computer, which revealed many images of child pornography that the “Internet Eraser” program had not fully erased. After he was charged with possessing images of child pornography, the defendant moved to suppress the images from both the hard drive and the screen shots. The district court denied the motion on the ground that his wife had common authority to consent to a search of the hard drive and was a private actor when she obtained the images using the screen shot program.
So far, so good. But the district court then added this unusual argument:
By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.
The Sixth Circuit affirmed without mentioning the trash analogy.