By Shana-Tara O’Toole | Due Process Institute | President
In United States v. Jacobsen (1984), the Supreme Court held that when a private courier discovered a broken cardboard box that was spilling cocaine and reported it to authorities, law enforcement didn’t need a warrant to open the box because “there was a virtual certainty nothing else of significance was in the package.” This exception to the Fourth Amendment’s warrant requirement is known as the private search doctrine.
In recent years, law enforcement has been using the private search doctrine to search entirely different boxes—laptops, tablets, cell phones, and other computer devices. According to law professor Ben A. McJunkin, the private search doctrine is now most frequently cited in cases that involve the warrantless search of digital data.
Of course, unlike a box full of cocaine, our computers and smartphones hold an extraordinary amount of personal digital information about us, including where we go, what we buy, what medical conditions we have, our private correspondence, and so much more. Recent U.S. Supreme Court precedents—specifically Riley v. California (2014) and Carpenter v. United States (2018)—recognize that the almost incalculable amount of information stored in and created on cell phones and other devices requires law enforcement to obtain a warrant to search that information. Applying the private search doctrine to computer devices dramatically undermines these precedents–and, indeed, the Fourth Amendment itself–by giving law enforcement an opportunity to search vast amounts of our most personal information without the permission, or limiting guidance, of a court. Precisely this sort of search happened to Jon Eric Shaffer.
Mr. Shaffer sent his laptop to a repair service. A technician at the service identified what he believed to be an illegal file on Shaffer’s computer and notified police. Citing the private search doctrine, the police searched the hard drive for more incriminating material.
The Due Process Institute joined the DKT Liberty Project and the Reason Foundation in an amicus brief urging the Supreme Court to review Mr. Shaffer’s case and rule that the private search doctrine cannot apply to computer devices. Closing this loophole is an important privacy protection against the intrusion of overzealous law enforcement into the most intimate details of our lives.
To be clear, our brief does not argue that computer technicians are prohibited from calling the police to investigate potentially illegal files found honestly in the course of their work. Indeed, our brief cites U.S. Department of Justice Guidelines for computer searches and seizures that states such files can provide the probable cause needed to get a warrant to search the computer. We simply assert that when techs alert law enforcement of potentially illegal files, the officers must then get a warrant to search the devices. It’s not that hard. The Constitution demands it. And the Supreme Court should make that clear.
You can read the joint amicus brief in Shaffer v. Pennsylvania here. Many thanks to Jennifer Ring Amunson and Andrew C. Noll of Jenner & Block for their work on this brief. We also want to thank our co-amici DKT Liberty Project and the Reason Foundation.