Private search of computers

How many times do we see the private search as an issue.  The upset spouse searches the computer to find evidence of infidelity, the Sailor’s friend or roommate comes across contraband CP on a computer and looks further, etc., etc., etc.

A responsible law enforcer would take the information to get a search warrant or command search authorization.  But that doesn’t always happen.  What does happen is that the law enforcer or someone in command goes and looks for themselves.  The question then becomes whether that is a search or is it a continuation of a private search.  If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search.  But what happens if the law enforcer does more than strictly replicate what the private searcher did.  So Orin Kerr has some information for us in the Washington Post.

[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.

See his article here in a 2005 article.

Because the Fourth Amendment applies only to the government and its agents, the Fourth Amendment is not triggered when private parties not associated with the government conduct searches. When a private party conducts a search and finds evidence of crime, the private party often goes to the police and voluntarily shows the police what she has found. The Supreme Court uses what I have called the “private-search reconstruction” doctrine to regulate what the police are allowed to see without a warrant. The police can reconstruct the private party search, seeing what the private party saw, but they can’t exceed the search the private party conducted.

On to the important legal question: When a private party searches a computer, sees a suspicious file and reports the finding to the police, what kind of government search of the computer counts as merely reconstructing the private search and what kind of search counts as exceeding the private search?

Read on for Orin Kerr’s thoughts in his article.