May 2, 2007 12:29 PM PDT

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

Police Blotter is a weekly CNET News.com report on the intersection of technology and the law.

What: Homeland Security agents obtained permission from elderly father, who lived in the same house, to search his son's computer for contraband.

When: 10th U.S. Circuit Court of Appeals ruled on April 25.

Outcome: By a 2-1 majority, the appeals court ruled the search was permissible because the father had the authority to consent to the search of the computer in his son's bedroom.

What happened, according to court documents:
During an investigation of Regpay, a payment-processing company that has been accused of having ties to child pornography, federal agents with the Department of Homeland Security became interested in a specific subscriber.

The name they obtained from Regpay's records was "Ray Andrus," with a street address in Leawood, Kan. They believed the account was used to access a now-defunct pornographic Web site called SunshineBoys.com. The e-mail address linked to the account was bandrus@kc.rr.com, however, which was associated with the name "Bailey Andrus."

But even after investigating for eight months, agents of Homeland Security's Immigration and Customs Enforcement section still didn't have enough hard evidence to make an arrest or get a search warrant from the judge. So they stopped by the house in Leawood for what's known as a "knock and talk," hoping to get permission for a voluntary search.

Customs agent Cheatham and Leawood police detective Woollen (no last names are given) arrived at the Andrus house at approximately 8:45 a.m. on August 27, 2004. Bailey Andrus, a 91-year old physician, answered the door in his pajamas and explained that his son Ray Andrus lived in the house to care for his aging parents.

Ray Andrus had a separate bedroom with the door ajar, and he was not at home. The father gave permission for the police to search his son's bedroom and any computers in it. Cheatham and Woollen called in a computer forensics expert, who had been waiting outside. He immediately unplugged the computer's hard drive and began browsing the contents using the EnCase forensic software (but did not check in advance to see if the contents were password-protected). Eventually the computer was seized by police.

The technician reported finding indications of child pornography after a few minutes of searching for JPEG files. At some point after this discovery, he halted and Ray Andrus was called at work. He agreed to come home. He was indicted on one count of knowingly and intentionally possessing sexually explicit images of minors in violation of federal law.

Andrus' defense counsel raised a number of objections to the search, centering on the argument that the elder Andrus did not have the legal authority to consent to a police search of his son's room and computer. (The computer was password-protected, but unless the contents are encrypted, such protection can typically be bypassed by plugging the hard drive into a second computer.)

That point is crucial. Normally a search warrant is required for a police search. But the U.S. Supreme Court has said that a third party can give consent--this often arises in husband-wife and roommate cases--for police to conduct a search if that person has joint access to that property, or control for most purposes.

Co-habitation is legally trickier, in other words, than a straightforward case of a bachelor living alone in a leased apartment. In a previous installment of Police Blotter, an appeals court ruled that police could not seize a computer without a warrant when the husband declined but the wife consented.

In the case of U.S. v. Andrus, the district court agreed that questions about the father's ability to consent made it a "close call"--but eventually ruled the results of the search could be used as evidence. Ray Andrus pleaded guilty and was sentenced to 70 months in prison. He did, however, reserve his right to raise the question of his father's consent during the appeal.

By a 2-1 majority, the 10th Circuit agreed with the district court and upheld his prison sentence.

Excerpts from the appeals court's majority opinion:
The inquiry into whether the owner of a highly personal object has indicated a subjective expectation of privacy traditionally focuses on whether the subject suitcase, footlocker or other container is physically locked. Determining whether a computer is "locked," or whether a reasonable officer should know a computer may be locked, presents a challenge distinct from that associated with other types of closed containers.

Courts addressing the issue of third-party consent in the context of computers, therefore, have examined officers' knowledge about password protection as an indication of whether a computer is "locked" in the way a footlocker would be. For example, in Trulock, the 4th Circuit held a live-in girlfriend lacked actual authority to consent to a search of her boyfriend's computer files where the girlfriend told police she and her boyfriend shared the household computer but had separate password-protected files that were inaccessible to the other. The court in that case explained, "Although Conrad had authority to consent to a general search of the computer, her authority did not extend to Trulock's password-protected files.

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90 comments

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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.
Posted by PzkwVIb (462 comments )
Reply Link Flag
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.
Posted by `WarpKat (275 comments )
Link Flag
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.
Posted by Dr_Zinj (727 comments )
Link Flag
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.
Posted by robbtuck (132 comments )
Reply Link Flag
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.
Posted by `WarpKat (275 comments )
Link Flag
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.
Posted by rkt2787 (4 comments )
Link Flag
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.
Posted by Inetsec (40 comments )
Reply Link Flag
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.
Posted by alaskanhunter (1 comment )
Link Flag
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.
Posted by sjit (2 comments )
Reply Link Flag
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.
Posted by Gromit801 (393 comments )
Link Flag
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?
Posted by tonyc666 (15 comments )
Link Flag
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...
Posted by anglosaxongal (9 comments )
Link Flag
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.
Posted by ev61 (111 comments )
Link Flag
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!!!!!!!!
Posted by cwclifford (53 comments )
Link Flag
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?
Posted by alegr (1590 comments )
Link Flag
When Living in Your Parents Basement....
You sound like a big whiner...
Posted by gerhard_schroeder (311 comments )
Reply Link Flag
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.
Posted by gerhard_schroeder (311 comments )
Reply Link Flag
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?
Posted by PzkwVIb (462 comments )
Link Flag
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
Posted by chuck_whealton (521 comments )
Link Flag
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.
Posted by seadoug (1 comment )
Link Flag
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.
Posted by solrosenberg (124 comments )
Reply Link Flag
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.
Posted by gerhard_schroeder (311 comments )
Link Flag
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.
Posted by MrCoolAce (1 comment )
Reply Link Flag
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.
Posted by MSSlayer (1074 comments )
Link Flag
Mr Schroeder
seems to believe that the ends justify the means. I can hardly think of a more unamerican sentiment.
Posted by PzkwVIb (462 comments )
Reply Link Flag
Mr Schroeder
seems to believe that the ends justify the means. I can hardly think of a more unamerican sentiment.
Posted by PzkwVIb (462 comments )
Reply Link Flag
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?).
Posted by gefitz (1116 comments )
Reply Link Flag
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.
Posted by Andronicus (141 comments )
Link Flag
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.
Posted by ctg44 (27 comments )
Link Flag
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!
Posted by NoVista (274 comments )
Reply Link Flag
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?
Posted by jsmith1785 (30 comments )
Reply Link Flag
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.
Posted by `WarpKat (275 comments )
Link Flag
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.
Posted by MSSlayer (1074 comments )
Reply Link Flag
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.
Posted by chris__anderson (23 comments )
Reply Link Flag
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.
Posted by lynb (2 comments )
Reply Link Flag
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.
Posted by seannj4989 (2 comments )
Reply Link Flag
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.
Posted by PzkwVIb (462 comments )
Link Flag
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.
Posted by rkt2787 (4 comments )
Link Flag
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.
Posted by R.Jefferson (136 comments )
Reply Link Flag
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.
Posted by {DvT}Hex (7 comments )
Reply Link Flag
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.
Posted by rkt2787 (4 comments )
Reply Link Flag
 

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