Police blotter: Can someone else let cops search your PC?

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Andrus' case presents facts that differ somewhat from those in other cases. Andrus' computer was located in a bedroom occupied by the homeowner's 51-year-old son rather than in a true common area. Dr. Andrus, however, had unlimited access to the room. Law enforcement officers did not ask specific questions about Dr. Andrus' use of the computer, but Dr. Andrus said nothing indicating the need for such questions.

The critical issue in our analysis is whether, under the totality of the circumstances known to Cheatham, Woollen and Kanatzar, these officers could reasonably have believed Dr. Andrus had authority to consent to a search of the computer.

Andrus argues his computer's password protection indicated his computer was "locked" to third parties, a fact the officers would have known had they asked questions of Dr. Andrus prior to searching the computer. Under our case law, however, officers are not obligated to ask questions unless the circumstances are ambiguous. In essence, by suggesting the onus was on the officers to ask about password protection prior to searching the computer, despite the absence of any indication that Dr. Andrus' access to the computer was limited by a password, Andrus necessarily submits there is inherent ambiguity whenever police want to search a household computer and a third party has not affirmatively provided information about his own use of the computer or about password protection. Andrus' argument presupposes, however, that password protection of home computers is so common that a reasonable officer ought to know password protection is likely. Andrus has neither made this argument directly nor proffered any evidence to demonstrate a high incidence of password protection among home computer users.

For the foregoing reasons, this court concludes Dr. Andrus had apparent authority to consent to a search of the computer in Ray Andrus' bedroom. We accordingly affirm the district court's denial of Andrus' motion to suppress.

Excerpts from the dissent by Judge Monroe McKay:
I take issue with the majority's implicit holding that law enforcement may use software deliberately designed to automatically bypass computer password protection based on third-party consent without the need to make a reasonable inquiry regarding the presence of password protection and the third party's access to that password.

The presence of security on Defendant's computer is undisputed. Yet, the majority curiously argues that Defendant's use of password protection is inconsequential because Defendant failed to argue that computer password protection is "commonplace." Of course, the decision provides no guidance on what would constitute sufficient proof of the prevalence of password protection, nor does it explain why the court could not take judicial notice that password protection is a standard feature of operating systems. Despite recognizing the "pervasiveness of computers in American homes," and the fact that the "personal computer is often a repository for private information the computer's owner does not intend to share with others," the majority requires the invocation of magical language in order to give effect to Defendant's subjective intent to exclude others from accessing the computer.

The burden on law enforcement to identify ownership of the computer was minimal. A simple question or two would have sufficed. Prior to the computer search, the agents questioned Dr. Andrus about Ray Andrus' status as a renter and Dr. Andrus' ability to enter his 51-year-old son's bedroom in order to determine Dr. Andrus' ability to consent to a search of the room, but the agents did not inquire whether Dr. Andrus used the computer, and if so, whether he had access to his son's password. At the suppression hearing, the agents testified that they were not immediately aware that Defendant's computer was the only one in the house, and they began to doubt Dr. Andrus' authority to consent when they learned this fact.

Accordingly, in my view, given the case law indicating the importance of computer password protection, the common knowledge about the prevalence of password usage, and the design of EnCase or similar password bypass mechanisms, the Fourth Amendment and the reasonable inquiry rule, mandate that in consent-based, warrantless computer searches, law enforcement personnel inquire or otherwise check for the presence of password protection and, if a password is present, inquire about the consenter's knowledge of that password and joint access to the computer.

[PzkwVIb]

The dissenting opinion was correct

If you apply a password to your machine you have a reasonable expectation of privacy.

Detaching the hardrive and attaching it to another machine was clearly an attempt not to be impeded by any security that may or may not have been present. I refuse to believe that any computer forensics expert with half a functioning brain would not take this in to account when choosing to attach the HD to a different machine.

[`WarpKat]

Except for one thing...

...the contents weren't encrypted...

...AND...

...let's not forget: the son committed a crime - so let's say you have a kid - and this guy has naked pictures of your kid on his harddrive, but you can't gain access to the contents because it's password protected, but not encrypted. Wouldn't you have some reasonable expectation of action on the part of law enforcement to arrest, charge and later prosecute this person?

I would hope so.

[Dr_Zinj]

Passwording is Expectation of Privacy

The majority opinion was wrong in this case.

The password serves the exact same purpose of a lock on a room or the front door of your house.
Removing the hard drive to by-pass the password is equivalent to finding an unlatched window and gaining access the the dwelling that way.

To apply the analogy of encryption to a home, an encrypted home would have everything superglued to surfaces, all light sources blocked, and everything covered in 2 inches of foam rubber to make it nearly impossible to identify or move.

Americans as a whole don't have any understanding of child pornography or sexual abuse. Mostly because they have no idea of what is normal behavior for people, or what actually constitutes harm.

[robbtuck]

Illegal search

Even if the guy is a scumbag, removing the hard drive to avoid security measures should constitute illegal searching. Also, if the elderly father has no ownership over the computer and the son is (obviously) an adult, his consent should be meaningless.

[`WarpKat]

No, it wasn't.

It was a legal search - no password protection was set on the contents, only the use of an account on the computer.

There is a clear difference, let alone a big one.

[rkt2787]

HD removal

The HD is removed so that the evidence can be preserved via hardware. Firing up a suspect's Windows machine would change innumerable dates, etc. and possibly taint the evidence.

[Inetsec]

Law and Hi-teck ignorance

Yes the subject line was misspelled - on purpose.

This is and always has been a problem with Law enforcement / courts / Govt, and any new technology.

Clearly this was an injustice, and to add further insult to injury, there was not enough "hard evidence found" to go for a conviction and I am sure that the mans life is now ruined since he will be a "suspect" from now on.

Is the United States headed back to the days of burning claimed witches on the stake? Yep. Seems to me like it.

[alaskanhunter]

Injustice?

I think the search was at the least questionable, however where is the injustice?
They "didn't have enough hard evidence to make an arrest or get a search warrant from the judge". At that point they were not looking for a conviction. They did not need to go to trial because he pled guilty. His life is ruined because he had child porn on his computer, not because of an illegal search.

[sjit]

The Dissenting Opinion is Faulty

To say that law enforcement used specialized software to specifically bypass password protection is wrong. If that were true, every PC on earth could be considered a specialized tool to specifically bypass password protection because installing the secondary drive on any PC automatically bypasses standard OS passwords. The software law enforcement uses isn't to bypass or hack passwords, it's to group specific file types together in an interface that makes them easy to search and preview.

Bottom line is whatever it takes to catch pedophiles, be my guest. Anyone that is outraged by this decision must have something to hide on their PC or are just paranoid. Be a good human being and this wouldn't bother you.

[Gromit801]

Spoken Like a True Fascist

The old "If you have nothing to hide..." argument. That it goes
against the principles of this nation doesn't seem to have made an
impact.

[tonyc666]

Wrong...

"Anyone that is outraged by this decision must have something to hide on their PC or are just paranoid. Be a good human being and this wouldn't bother you. "

You don't seem to understand the difference between being a 'good' human and being an 'intelligent' human.

This article has nothing to do with pedophilia (which is wrong and evil), it has to do with constitutional rights.

Let's say you watch CSI or Law & Order, and you get interested in Forensic Accounting. You google a bunch of stuff on FA, download articles, etc.

Let's say then say sometime later the company you work for discovers a financial fraud on their books. The police ask permissions to search all the employees' home PCs, you're not home and the scenario outlined in the CNET article takes place. The police find the articles on your hard drive (and you had password protected your PC) detailing examples of how financial frauds were committed.

Guess what? You've just been found quilty by association, even though you have done nothing wrong. While the articles on the PC alone may be not enough to get a conviction, it's enough for the police to make your life miserable for a while.

Do you get the point now?

[anglosaxongal]

Personal attacks

The writer says dissenting opinion faulty. Since they don't do much to or for pedophiles it doesn't really seem to matter; except that they use such excuses to disenfranchise and oppress Democrats in many of these cases and like terrorists prisons, there's a black-out on the news on such things. Do you really trust someone who may knock on your door tomorrow under false pretenses and ruin YOUR life? They are already taking every constitutional and civil rights away from us...unless of course you were born with a silver spoon in your mouth...in which case, you can get away with your pedophilia at will, anyway. Look to your Political leaders and hold them accountable, then we'll take your word for it. It takes a good person to know one...

[ev61]

Hmmm...

sjit seems to be fine with warrantless searches and seizures... bypassing password protection is essentially going through a window when the front door is locked, which is not a legal alternative either.

It seems though, that simply putting a post it note on your computer saying "This computer is password protected" gets rid of the supposed loophole. The defense failed to make the reasonable connection between passwords and home computers, and as a result did not win the motion. Wait for another appeal with a better attorney and this will be new law. It is comical that defending a pedophile is the only way to protect our rights, but think if the government wanted to search your computer... even if you did nothing wrong.

[cwclifford]

What is your address?

I would like to come by and tear apart your computer. You don't mind do you? I suspect you and your family are terrorists and therefore give your mom a cavity search. This will be "OK" because I am sure you all have nothing to hide. WAKE UP!!!!!!!!

[alegr]

Any means?

One question:

If you think that some person is clearly a criminal, but there is not enough to get him convicted, is it OK to plant an incriminating file to his computer, to facilitate his procecution?

[gerhard_schroeder]

When Living in Your Parents Basement....

You sound like a big whiner...

[gerhard_schroeder]

Liberals help Pedophiles get off the hook w/ technicalities

The liberals are always willing to get pedophiles off the hook on a technicality. Its quite a disturbing trend. They see the law enforcement as the danger instead of the pedo. What is wrong with the crazed liberal mind? Court cases are not ran by God, therefore, they are not perfect. But the liberals will use any imperfection to get dangerous pedos off the hook.

[PzkwVIb]

No, People interested in the rule of law

Demand, that due process be followed. Pedophile or Jaywalker makes no difference.

And since when is standing up for Constitutional rights purely a liberal thing. The NRA is always demanding their Constitutional rights. Are they a liberal organization?

[chuck_whealton]

Not only liberals

Unfortunately, Gerhard, it's not just liberals. I can't think of a couple of people who identify themselves as "conservatives" who would also try to get predators off the hook for something so petty.

It's frightening.

Charles R. Whealton
Charles Whealton @ pleasedontspam.com

[seadoug]

Its not atechnicality when the feds break the law

First, I am a liberal and proud of it.
Second, I have no tolerance for pedophiles
Three, Looking at kiddy porn pictures does not necessarly mean your a pedophile, however, it is illegal.
Four, what is the Dept. of Homeland Security doing chasing down porn instead of terrorist?

It is obvious to anyone wiht half a brain that this ruling allows the police to bypass your rights to unreasonable search and seizure. What if the officer doesn't like you and wants to go on a fishing expedition on your computer? What if he is in with your ex-wife or girl friend and they are trying to pin something on you or find an asset they think you are hiding. I don't like pedophiles or kiddy porn, but I don't want people going through my stuff without probable cause as determined by a judge.

The lesson here is to put a physical lock on your computer case so that they can't bypass the password protection and use encryption if your OS will allow it.

[solrosenberg]

The Lesson

Never let the cops into your house unless they have a warrant. And make sure everyone else who lives in your house agrees. Cops are not your friends and they don't stop by just to chat.

[gerhard_schroeder]

Lesson : for pedophiles

"The cops are not your friend"...

Yeah, if you are hoarding kiddie porn on your PC! My God, the sickos are out tonight on C|Net... look at them work to help the enemy of our society. Its disgusting.

[MrCoolAce]

I'd like to see the worst case happen

Its very difficult to defend someone that actually had child porn on his computer. I'd really like to see the case where they looked for child porn and came up empty, except maybe they find some other (unrelated) criminal evidence on the PC. This is the person who should scream from the highest mountain that his rights were abused.

[MSSlayer]

Does it matter?

An unconstitutional search and seizure is always wrong no matter the outcome.

If a police finds nothing and is illegal that is bad. But somehow, if a police action finds something and is illegal, that is OK?

Selective morals will be the end of this once great country.

[PzkwVIb]

Mr Schroeder

seems to believe that the ends justify the means. I can hardly think of a more unamerican sentiment.

[PzkwVIb]

Mr Schroeder

seems to believe that the ends justify the means. I can hardly think of a more unamerican sentiment.

[gefitz]

OK, pedophiles should pay, but...

The problem is that the justice system works on precedent. When a decision like this is made, it furthers the cause of those who believe ANY information you keep, regardless of the expectation of privacy, is searchable without direct consent of the owner.

I think people that say the decision was correct solely for the reason that it caught a pedophile is having trouble seeing the forest for the trees. The fact is that further precedent has been set for police searches for ANY information (financial, communications, indirect knowledge of wrongdoing, "terrorist" activity, etc) that might be on a computer are legal as long as someone nearby is asked (not even necessarily related to the owner of the computer: a roommate, for example?).

[Andronicus]

Some real thought

Wow. Someone here acctualy has put some thought into their post. You are exactly correct. The how CP thing is not the issue that should be discussed here, it is realy just the setting, not the plot.

[ctg44]

Roommates are family

In many states, a roommate automatically becomes family in every sense of the word. Maybe not a blood-relative, but for all criminal and civil purposes, they are family. In some states, community property laws make it clear that what is yours in a house belongs to all other adult residents of the home. Again, no encryption on the drive, no reasonable expectation of privacy...anyone with a clue knows that your Windows password is not even as effective as a window screen is for blocking like when you want to keep people from seeing files on your HDD.

[NoVista]

Partisanshit sucks!

So do _ad_hominem_ comments.

First, this article was too light on details. Bad c/net!

This particular story would never even have featured on Police Blotter if the law enforcement people had gotten a warrant. That's proper procedure and doesn't need agreement.

If those of you who take the moral high ground equate arguments for rule of law with pedophilia, you're just created a lot more pedophiles.

From this article, we do not know what the alleged evidence of pedophilia was, so it is diffuclt to judge the real culpability, to what degree. That he copped a plea is not guarantee of much of anything; sometimes that is just in hopes of a lighter sentence, which even then is not always guaranteed.

There's no indication this was a jury trial, but then, only about 3% of charges go before a jury, anyway.

JPGs are suggested, OK. Let's say this bloke had some pictures of underage boys ... or girls. A crime, under law, yeah? But who is the victim of the crime?

Personally, I see no allure in child porn photos but some kink who likes them of itself is no great threat to the homeland security supposedly being defended. I guess this case ends with one 'criminal' in jail. And I suppose his aged father knows in his heart the right thing was done. But who will look after him [and the wife?'] now.

This is like arresting, trying and convicting of someone with a bit of weed and ignoring the top of the food chain in the drug wars.

Real pedophils are activists. Just ask Mark Foley ...

But for those who have nothing to hide on their computers, don't feel too secure. Everyone has enemies -- you do, too. I'm sure anyone could hire a good hacker to pollute your computer with a 'hidden' folder of child porn. And then be the 'anaonymus tip' to the police or DHS.

Check out the Atlanta story of the 92 y.o. woman who was mortally wounded in a 'no-knock' raid on her house, based on false informant information. When the cops found they were led astray, one planted some marijuana in hopes of covering the tracks.

Do not believe just because are pure of heart that something wrongfully bad could not happen to you. Too many stories of drugs busts on =the wrong house= have already been well-documented.

And if you survive the SWAT team, screaming, "I'm innocent", whether of unknown kiddie porn on your computer or the crack you never knew was there til it was planted, only then might you understand rule of law and people that argue for it.

Have a nice day!

[jsmith1785]

Police violate DMCA

You can take a group of files, and put them together as a collection and copyright that collection. His computer was password protected, and the police circumvented this protection, thus violating the DMCA. Interesting twist of the law?

[`WarpKat]

Your Thought Process is Flawed

The use of the computer was password protected.

The harddrive's contents were not.

There is a very big difference.

[MSSlayer]

technicality?

Since when is the Constitution and the Bill of Rights a technicality.

Are you so stupid or frightened that you can't understand that if the lowest form of human has no rights, you don't either?

People like you exhibit some of the most amazing and perverse stupidity and ignorance.

[chris__anderson]

don't be silly

the colonial united states didn't burn witches at the stake. that was england. witches in the colonies were hanged.

and we don't do many hangings in the US anymore. mostly we give them the electric chair. talk about irony.

[lynb]

Cops and searching your PC

I do not want those who traffic in kids porn to escape or weasel out of justice, however,
I do agree with the dissenting Judge McKay on this issue.

A computer that is password protected ultimately says that privacy is important to the owner of the password.

[seannj4989]

Homeland Security?

How does pornography turn into a Homeland Security issue? Was Osama in the jpegs?

This is precisely the abuse that we should be fending off. These are the very ppl who wish to place us in a national database and track us even further.
Our government didn't protect us before the attacks and they aren't protecting us now. They have been so systematic in their reach for more authority it would almost seem to confirm their involvement in the creation and execution of those attacks.

[PzkwVIb]

You are right

This administration started out the travesty of "Fatherland... sorry Homeland Security". And now they ignore real problems and go after people that might have seen naughty pictures on the net.

Here's a radical idea, go after the makers of child porn and the ones that pay them. People who might have a few jpegs somewhere that came from who knows where on the web needs to be there last priority. But hey, far easier to go after low hanging fruit and get some convictions than address the real problem.

[rkt2787]

Down boy

CP Investigations were a function of US Customs before they merged with INS. DHS/ICE investigates CP that includes interstate or international trafficking or delivery of contraband images. Just like drugs.

[R.Jefferson]

Police exploited elderly

I?m speculating here but what do you think a 90 year old person is going to do when confronted by police? An old person is going to go above and beyond to help the po po. I suspect that the police exploited the vulnerability of the senior citizen.

It sucks but it?s a fact of life that if you expect privacy with your computer, in your own home, you have to password protect it, and lock the tower and peripherals.

Computers are so cheap now everyone in a household should have their own. I wouldn?t even trust my own Mother on my computer. I don?t need the headaches that come with downloading ?cute_puppies.scr? or any toolbar or ?helpful? program.

[{DvT}Hex]

3rd Party Permission To Search

If a 3rd party, spouse, roommate, parent, whomever, has the authority to authorize a search, then that 3rd party also bears responsibility for the fruits of that search. In other words, responsibility goes along with authority and, in this case, the father should also be held responsible for the presence of the porn on the computer. For that matter, I'll go one step further: the father alone should be held responsible for the porn: he gave permission, thus it can be reasonably assumed that he had knowledge and control over the content of the search object; without such knowledge and control he had no business or authority to permit the search.

[rkt2787]

Customs agent?

CNET, you were doing great...till you referred to an ICE Agent as a Customs Agent. This changed 4 years ago. It's okay, the media...and half the agency is still catching up.