Technology presents new challenges in the protection of Fourth Amendment rights, especially regarding expectations of privacy and warrantless searches. A key question, as the U.S. Supreme Court found in 2001, is how to preserve “that degree of privacy against government that existed when the Fourth Amendment was adopted.”
A recent case out of Maryland goes a long way in enshrining critical protections for personal data in that state, striking a bold contrast with other recent decisions that degrade privacy.
The Fourth Amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” [emphasis added] Since the advent of the digital age, courts around the country have analogized personal data to the founding-era concept of personal papers, which the Supreme Court has long held to be safeguarded against unwanted intrusion.
Yet, the Court has gone further in recent years, finding that digital information implicates “privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” After all, any thorough search of a citizen’s digital data is bound to turn up troves of personal information – from banking information to private correspondence – unrelated to the particularities of a warrant. It makes sense that our digital footprints would merit enhanced protection.
Despite this seeming clarity, much ambiguity persists surrounding the protection of digital data. State of Maryland v. Daniel Ashley McDonnell presents a novel question of law and fact unresolved at the national level: Does a reasonable expectation of privacy exist in the contents of a copied computer hard drive after consent to search that hard drive has been revoked?
The Supreme Court of Maryland found that it does.
Here’s the background: Daniel Ashley McDonnell granted investigating officers’ consent to search his computer. Police subsequently made a forensic copy of McDonnell’s hard drive and proceeded to analyze its data even after McDonnell withdrew his consent. For its part, the state argued that McDonnell lost any reasonable expectation of privacy once he allowed his data to be copied.
In constitutional law, warrantless searches of person or property are considered unreasonable unless certain exceptions apply – if a person lacks any reasonable expectation of privacy, for example, or if consent is granted to perform a search. Generally, when that consent is revoked, authorities may not conduct a search by relying on the prior consent.
In this case, the Supreme Court of Maryland found that McDonnell had a privacy interest in his data itself – not in the hard drive copy made by investigating authorities. Had the police examined the hard drive data while consent was in effect, McDonnell would have lost any reasonable expectation of privacy in that data. But given that consent was withdrawn prior to the search, he maintained that expectation absent an independent search justification.
The court wrote:
“To accept the State’s stance--i.e., that Mr. McDonnell irrevocably lost all privacy interest in the data on his hard drive when he allowed [police] to copy it—would be to permit a limitless search through vast quantities and a varied array of personal data that the Supreme Court of the United States has characterized as consisting of more information than would be found in an exhaustive search of a person’s home.”
In a similar case, the U.S. District Court for the Middle District of Florida came to a different conclusion, finding that “revocation of consent does not require the suppression of evidence already lawfully obtained.” However, the preponderance of case law and legal scholarship suggests the Supreme Court of Maryland struck the right balance. Its opinion is consistent with recent scholarship by law professor Orin Kerr, who argues that “the same Fourth Amendment rules that apply to searching a suspect’s computer should also apply to searching the government’s copy.” It is further consistent with the U.S. Supreme Court’s warnings in Riley v. California, which noted the potential of a cell phone search to reveal “[t]he sum of an individual’s private life.”
The Supreme Court of Maryland’s decision is a win for data privacy. To quote the amicus brief from our friends at Restore the Fourth, absent such protections the government could “copy and indefinitely detain every private paper on a person’s hard drive (i.e., millions of documents) at minimal cost—except to the Fourth Amendment.”
The Maryland decision was well reasoned and well done.