(More) Hard Drive Questions

This is a follow-up to the last post I did, which was on how the use of P2P file-sharing networks can impact on whether someone has a reasonable expectation of privacy in the files on their hard drive.

For what a reasonable expectation of privacy under the 4th amendment is and why it matters whether you have one, see the post just before this one. That post also talks about how using of LimeWire or other P2P file-sharing networks can impact on it, see the post just before this one.

This post is responding to two questions someone emailed me, follow-ups to what I talked about last time. I’ll comment on each question in order.

(1) What if the person requires a password to access and view the files on his HD, then do they have a reasonable expectation of privacy.

They presumably would. To return to the analogy I used in my past post, password-protecting files is functionally identical to closing the curtains on a window, i.e., it cuts off access by others.

Some courts have held that password-protecting files does establish a reasonable expectation of privacy under the 4th Amendment. If you’d like to read one of them, try Trulock v. Freeh, which you can find here. Click on the link for the first opinion listed: Trulock v. Freeh (December 28, 2001), Docket # 00-2260 and Opinion # 002260.P.

(2) What if person A gave person B access to person's A HD and person B loaded it with illicit material, then person B gives a undercover policeman access to person A's HD. Does person A have a reasonable expectation of privacy?

Probably not – it’s always impossible to say exactly what a court will hold because so much can depend on the particular circumstances of a case. But this one reminds me of a Supreme Court case, Frazier v. Cupp, 394 U.S. 731 (1969). After being convicted of murder, Frazier argued that the trial court should have suppressed some of his clothing found in a duffel bag he owned but had let his cousin, Rawls, use. This is how the Supreme Court dealt with his argument:

[Frazier] argues that the trial judge erred in permitting some clothing seized from his duffel bag to be introduced into evidence. This duffel bag was being used jointly by Frazier and his cousin Rawls, and it had been left in Rawls' home. The police, while arresting Rawls, asked him if they could have his clothing. They were directed to the duffel bag, and both Rawls and his mother consented to its search. During this search, the officers came upon Frazier's clothing, and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against Frazier while in the course of an otherwise lawful search. Under this Court's past decisions, they were clearly permitted to seize it. Frazier argues that Rawls only had actual permission to use one compartment of the bag, and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls' consent. Frazier, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this case.

Frazier v. Cupp, supra.

Under Frazier, if you give someone access to your possessions – duffel bag, hard drive whatever – you assume the risk that they will betray you and give law enforcement officers access to those possessions.

As to B’s having been the one who put the illegal stuff on the hard drive, that’s irrelevant as to 4th amendment issues. That becomes a defense – what’s called a failure of proof defense – A can use at trial. That is, A can say “it wasn’t me who did this, it was B”, and if the jury buys A’s argument, the prosecution’s proof fails and he should be acquitted.