Police steal data to convict, court upholds evidence


Eroding your rights, one case at a time
No doubt about it, this one is scary.

Can an elderly father give police permission to search a password-protected computer kept in his adult son's bedroom, without probable cause or a warrant? In April, a three judge panel of the 10th Circuit Court of Appeals said yes.

This week, the son's attorney, Melissa Harrison, an assistant federal public defender in Kansas City, will ask the court to reconsider the panel's ruling. At stake is whether law enforcement will have any responsibility to respect passwords and other expressions of user privacy when searching devices which contain the most sensitive kinds of private information.

In United States v. Andrus (.pdf), agents suspected that the defendant was accessing websites containing child pornography, but after eight months of investigation still did not have sufficient probable cause to get a search warrant. Instead, they decided to drop by the defendant's house for an impromptu conversation.

The suspect was not at home. However, his 91-year-old father answered the door in his pajamas, invited the agents in, and eventually gave them permission to enter his son's bedroom and search the hard drive on his son's password-protected computer. The agents used EnCase to perform the search, a common forensic tool programmed to ignore Windows logon passwords. Agents found child pornography on the computer.

Without a judge's permission, the search depended on the father's authority to allow police access to his son's computer. On this point, the fact that the son locked his parents out of the computer with a password is critical.

The Fourth Amendment generally prohibits warrantless searches of an individual's home or possessions. There is an exception to the warrant requirement when someone consents to the search. Consent can be given by the person under investigation, or by a third party with control over or mutual access to the property being searched. Because the Fourth Amendment only prohibits "unreasonable searches and seizures," permission given by a third party who lacks the authority to consent will nevertheless legitimize a warrantless search if the consenter has "apparent authority," meaning that the police reasonably believed that the person had actual authority to control or use the property.

Under existing case law, only people with a key to a locked closet have apparent authority to consent to a search of that closet. Similarly, only people with the password to a locked computer have apparent authority to consent to a search of that device. In Andrus, the father did not have the password (or know how to use the computer) but the police say they did not have any reason to suspect this because they did not ask and did not turn the computer on. Then, they used forensic software that automatically bypassed any installed password.

Now I am not defending child pornography. I am pointing out that the police ignored existing case law to obtain evidence..

What's the danger? If you are not guilty, you have nothing to worry about, right?

Except we know that the FBI has already tapped cell phones by remote control.

And the FBI wants ISPs to track your online activities without your knowledge.

And the FBI and FCC want a backdoor into your computer.

Without the protections granted by previous case law, the only rights and protections you have are the ones that the police agree to give you. And THEY have the guns.

So yes, this particular case is messy. But if the justification is child porn today, then tomorrow it could be anything from income taxes to unpaid parking tickets.

Hat tip the Agitator.

— NeoWayland

Posted: Fri - May 25, 2007 at 02:28 PM  Tag


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