Can You Trust Your Webcam?

This is about a case the California Court of Appeals recently decided: People v. Wilkinson, 2008 WL 2441101 (California Court of Appeals, June 18, 2008).

The issue in the case is a Fourth Amendment issue, which I’ll get to. Mostly, I want to explain what happened to get Joseph Wilkinson charged with “unauthorized access and taking of computer data”. People v. Wilkinson, supra.

In September 2005, [Wilkinson] and Schultze, who had been friends for several years, were sharing an apartment. . . . Each . . . had his or her own room. In her room, Schultze had a computer with a webcam . . . which she used primarily for video conversations over the Internet. . . . [Her boyfriend] Sadler was either `spending a lot of time’ at the apartment or had moved into Schultze's room.

On September 4, Sadler discovered a video file on Schultze's computer that showed [Wilkinson] in Schultze's room. Suspicious that [he] was using the webcam to record them, Sadler conducted an investigation to determine `if things were being changed on the computer while [he and Schultze] were away.’ Over the next several days, he determined that someone was deleting video files on the computer that the webcam had recorded and moving the webcam so that it pointed at the bed.

On . . . September 7, 2005. . . Officer James Walker responded to a complaint by Sadler and Schultze that [Wilkinson] was using a webcam to record them. . . . The officers then went inside to speak to [Wilkinson]. Officer Walker asked [him] if he could look around [his]'s room, but [Wilkinson] refused to give his consent.

After speaking with [Wilkinson], the officers took him to their patrol car. Walker told Sadler and Schultze that he did not have probable cause to arrest, but he was “willing to accept their citizens arrest,” and . . .` there would probably be some follow-up. . . . ‘Sadler `was upset . . . [H]e thought there was gonna be more of an investigation. . . . ‘ Walker explained . . . he could not search [Wilkinson]'s room because [he] had refused. . . . Sadler asked if he could go into [Wilkinson]'s room. Walker told Sadler, `you can do whatever you want. It's your apartment. . . . But . . . you cannot act as an agent of my authority. I cannot ask you to go into the room, nor can you go into the room believing that you're doing so for myself.’ Walker also told Sadler . . . [Wilkinson] had asked that they not go into his room. . . . Officer Walker took [Wilkinson] to the jail for booking. . . .

After the[y] left, Sadler and Schultze discussed what they should do. . . Sadler decided to go into [Wilkinson]'s room to look for more evidence. He entered [his] room and picked up about 15 to 20 compact discs he found strewn around the room. . . . He took them to Schultze's room where he viewed three to five of them on Schultze's computer. . . . [H]e found images of . . . himself and Schultze `hanging out’ . . . and `being naked,’ with some sexual content but no images of them having sexual intercourse. He went back to [Wilkinson]'s room . . .and took all the writable compact discs he could find.

Sadler returned to Schultze's computer and viewed about five to seven more of the discs. . . . Meanwhile, at the police station, Walker's sergeant “overruled” [Wilkinson]'s arrest. Walker brought [Wilkinson] home and left him in the patrol car while he explained to Sadler why [he] was no longer under arrest. Sadler told Walker he had found evidence of [Wilkinson] having taken images from Schultze's computer, put them on compact discs, and taken them back to his room. . . . Walker and Sadler went to Schultze's room, where Sadler showed the officer images on two of the compact discs he . . . viewed. Walker told Sadler he would need to see more explicit images of Sadler and Schultze having sexual intercourse, and Sadler looked through . . . more discs to find the images the officer wanted.

Walker took 36 compact discs Sadler had removed from [Wilkinson]'s room. At the police station, Detective Jimmy Vigon viewed images from `several’ discs, which consisted of Sadler and Schultze `sitting around watching TV to actually having sex.’ After viewing [them], he interviewed [Wilkinson]. . . [who]admitted obtaining the images from Schultze's computer[and] signed a consent form allowing the police to search his room.

People v. Wilkinson, supra.

After being charged with unauthorized access and “taking of computer data,” Wilkinson moved to suppress the evidence. He argued that Sadler’s taking he disks was an illegal, warrantless search because Sadler was acting as an agent of the police when he did so. Wilkinson also argued that Walker’s viewing the images without a warrant was also an illegal search. People v. Wilkinson, supra.

As to the first issue, as I’ve noted before, constitutional provisions like the 4th Amendment only protect us from “unreasonable” government action. They don’t protect us from what other private citizens do. So if I illegally search your stuff (you didn’t give me permission), that may be a trespass and some other civil causes of action but it doesn’t violate the 4th Amendment. And that’s what the court of appeals found as to Sadler’s searching Wilkinson’s room: Sadler was acting on his own, not as an agent of the police. To be an agent of the police, (i) you have to be acting with the intent to benefit the police (which Sadler was) AND (ii) the police have to have encouraged you to do that, which Officer Walker did not do. The court found Sadler searched on his own, so there was no 4th Amendment problem with his finding and looking at the disks.

The court of appeals also held there was no 4th Amendment violation in Walker’s looking at images on the disks Sadler had already seen. It’s a basic premise of 4th Amendment analysis that, as I noted above, private searches don’t violate the 4th Amendment, which means that police don’t violate the 4th Amendment, either, if they simply look at what a private party has already examined. People v. Wilkinson, supra.

There’s a case in which a FedEx package started leaking white powder; FedEx employees opened the package to see what was going on and found what they thought was cocaine. No 4th Amendment problems because they’re acting as private citizens. They called the police, who looked at what the employees had seen and concluded it was cocaine. The person who sent the package was charged with distributing cocaine and moved to suppress, claiming this was an illegal search. The court upheld the search because (i) the private citizens didn’t violate the 4th Amendment (they can’t, unless and until they become agents of the police), and (ii) the police didn’t violate it either because they just looked at what the private citizens had already found.

This court of appeals reached the same conclusion as to some of Officer Walker’s conduct. When he simply looked at disks Sadler had already viewed, the rationale I outlined above applied and there was no 4th Amendment problem. The problem came when Walker told Sadler he would need more explicit images of sexual intercourse, and Sadler went back to find them. So the court of appeals held that Walker’s viewing of these images was an illegal search under the 4th Amendment (because he didn’t just stay within the scope of what Sadler had already seen, acting on his own). People v. Wilkinson, supra.

The court also found there was another illegal search: Detective Vigon looked at images on “several” of the disks taken from Wilkinson’s room. The problem as that there was

no evidence in the record . . . as to . . . what discs he viewed or whether those discs were ones that Sadler had already viewed in his private search. As a result, it is impossible to determine whether Detective Vigon's viewing of the . . . discs exceeded the scope of the private search. Because the People failed to show that Detective Vigon's viewing was limited to discs that had been previously viewed during the private search, we conclude that Detective Vigon's viewing of the discs was an illegal search. . . .

People v. Wilkinson, supra. The court of appeals therefore remanded the case back to the trial court, instructing it to go through the evidence and figure out precisely what should, and should not, be suppressed.

The 4th Amendment issues are really very straightforward. It’s the facts that are creepy. . . .