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When Ray Andrus’ 91-year-old father gave federal agents permission to search his son’s password-protected computer files and they found child pornography, the case turned a spotlight on how appellate courts grapple with third-party consents to search computers. With an increasing number of criminal cases depending on forensic computer searches, the direction courts ultimately take is likely to affect a wide array of criminal cases, ranging from hacking and piracy to murder investigations, according to Orin Kerr, a George Washington University Law Center professor specializing in computer crime law. The case was a first for the 10th U.S. Circuit Court of Appeals, and only two other circuits have touched on the issue, the 4th and 6th circuits. The 10th Circuit held that although password-protected computers command a high level of privacy, the legitimacy of a search turns on an officer’s belief that the third party had authority to consent. The 10th Circuit’s recent 2-1 decision in U.S. v. Andrus, No. 06-3094 (April 25, 2007), recognized for the first time that a password-protected computer is like a locked suitcase or a padlocked footlocker in a bedroom. The digital locks raise the expectation of privacy by the owner. The majority nonetheless refused to suppress the evidence. “This is definitely a new twist and an important new twist,” said Kerr. Locked-box issue At issue here is a clash between the user’s perspective of a computer as a locked box protecting its virtual contents, and the law enforcement perspective of a computer as simply a physical container, easily opened to expose millions of zeros and ones � the binary coding that identifies data throughout the entire machine without regard to a protected filing system. More specifically, the issue is whether to apply the Fourth Amendment from the virtual perspective or the physical perspective, Kerr said. “The big question is whether the majority’s approach will last,” he said. Judge Michael R. Murphy, joined by the court’s newest member, Judge Neil M. Gorsuch, said the legal test is “whether law enforcement knows or should reasonably suspect because of surrounding circumstances that the computer is password protected.” In dissent, Judge Monroe G. McKay called the unconstrained ability of law enforcement to use forensic software to bypass password protection without first determining whether such passwords have been enabled amounts to “dangerously sidestepping the Fourth Amendment.” “The fact that a computer password ‘lock’ may not be immediately visible does not render it unlocked,” McKay wrote. He wanted the panel to recognize that password protection has become “commonplace” in today’s world and whether a computer search is objectively reasonable is fact-specific to individual cases “with no bright-line rules.” In Andrus’ case, agents did not check the computer for passwords but simply attached a device that allowed them to download all the data it contained without regard to passwords. Andrus, 51 at the time, was out when agents did what is called a “knock and talk” in an attempt to gather enough information for a search warrant. Andrus’ elderly father gave permission to search the house and computer, though he had never personally used the machine, which was in Andrus’ bedroom. Andrus’ attorney, Melissa Harrison, an assistant federal public defender in Kansas City, Kan., said she will request en banc review by the circuit. “This is something that hasn’t been addressed at all by the 10th Circuit,” she said. “Not only don’t police have to ask if there is a password, they are not even required to turn the computer on to see if it is password-protected,” she said. “My client has a reasonable expectation of privacy in the contents of his computer. His father didn’t have authority to consent to search, he didn’t even know how to turn it on,” she said. “The court improperly put the burden on my client. Police should at least be required to ask if [the computer] is locked.” Assistant U.S. Attorney Leon J. Patton, in Kansas City, declined to comment on the case. Two circuits rule Two other circuits have touched on the question. In a January decision by the 4th Circuit, U.S. v. Buckner, 473 F.3d 551 (2007), a woman who was suspected of online fraud consented to a police search of a computer she shared with her husband, including his password-protected files, which turned up child pornography material. The 4th Circuit likened the protected files to a “locked box” in a common area, but declined to suppress. The wife’s lack of authority to consent did not matter so long as officers “at the moment” had reasonable belief she had the authority. In 2006, the 6th Circuit also refused to suppress a computer search approved by a woman who was suspicious that her husband was viewing child pornography on his separate home computer. U.S. v. Morgan, 435 F.3d 660 (2006).

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