Tuesday, February 08, 2005

Caballes opens door for computer searches

How bad was the Supreme Court's Caballes decision? We're still finding out. Mark Rasch at Security Focus is starting to unravel how thoroughly Caballes screwed up Fourth Amendment rights in cyberspace. Under the new regime:
The expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable," the court wrote.
In other words, the search by the dog into, effectively, the entire contents of a closed container inside a locked trunk, without probable cause, was "reasonable" even though the driver and society would consider the closed container "private" because the search only revealed criminal conduct.

The same reasoning could easily apply to an expanded use of packet sniffers for law enforcement.

Currently, responsible law enforcement agencies limit their warrantless Internet surveillance to the "wrapper" of a message, i.e., e-mail addresses or TCP/IP packet headers, unless they have a court order permitting a more intrusive search. Looking at the "outside" of the communication has been treated as similar to looking at the outside of a vehicle -- and maybe peering into the window a bit. To peek inside the communication -- read the content -- required that you first get someone in a black robe involved.

The experiences of Mr. Caballes ... changed all that. The government is practically invited to peek inside Internet traffic and sniff out evidence of wrongdoing. As long as the technology -- like a well-trained dog -- only alerts when a crime is detected, it's now legal.
With as much information as is stored electronically these days, that's less like a dog sniff and more like they just took the chain off the pit bull. It's easy to imagine searches, or whatever we're supposed to call them now, of electronic files that purport to only look for illegal things. Orin Kerr at the Volokh Conspiracy wondered about this implication the day the decision came out:

This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it's no longer so clear.
I fear Caballes allows exactly that, and that it's just the beginning. At a time when one could stack up the victims of identity theft like cordwood, we don't yet understand the 21st century implications of our lost Fourth Amendment freedoms after a series of shoddy Supreme Court decisions misinterpreting it for the worse. The protections that meant so much just a few years ago have been largely stripped away, particularly regarding computer information and our rights on the road. We have stepped through the looking glass.


X said...

Without preparing a complete memorandum of law, here is where I think the dog is distinguishable from the computer scenario.

In order for law enforcement to use technology to examine a scene before probable cause is established, the technology must be enhancing a human perception.

In Caballes, an odor was being emanated from the vehicle. With your hypothetical computer example, there is nothing emanating from the computer capable of being perceived by humans. Therefore, Caballes, Kyllo, and the rest of the technology cases likely would prevent the types of searches you proposed.

Simply put, humans have no capacity to smell, hear, see, feel, or taste the difference between legal and illegal computer data. Therefore, it would be impossible to enhance any of these senses with technology in a manner capable of establishing probable cause for a search.

I am sorry, but I still don't think Caballes is that big of a deal. It didn't really change anything. Rahter, it merely clarified the long line of technology cases.


Gritsforbreakfast said...

Baron, I agree that Cabellas clarifies a long line of SC thinking from Katz to Whren to Kyollo to Cabellas. I just believe it's Orwellian thinking that has subverted what on its face should be our Fourth Amendment liberties, for the reasons we've discussed -- they have redefined a search to say it's not a search if they're looking for illegal things. Given the twisting and turning we've seen by the Supremes to get around the Fourth Amendment whenever they want, I have little reason to think they won't find an excuse to allow peeking into computers for child porn and such, especially with one or two Bush justices on the bench.

As for the computer and human senses, let's see: Child porn exists and may be viewed on someone's computer screen. Computer program allows police remote viewing of porn on computer -- to see something from far away when they can't get up close. (All information is derived through our senses!!) Since people have no reasonable expectation of privacy to view child porn, officers can check to see if you're doing so. Why not? It just lets them see what they would have if they could view non-private images on the computer screen, like a dog smelling drugs in the trunk, under the new thinking. You know Clarence Thomas would go for that reasoning, and I fear, sadly, at least five of them would.

I hope you're right, Baron, that it won't be abused, but I'm not optimistic.

X said...


First, go back and re-read Kyllo. Remember the barrier drawn "at the threshold to the home."

Second, most people seem to think Bush will put a J on the Bench similar to Scalia. Scalia is the one who wrote Kyllo and prevented the search! There is no reason to think a Bush J would do anything different.

Third, "SCALIA, J., delivered the opinion of the Court, in which SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined." -Kyllo

It is paranoia to think this is a left/right issue. The Court was clearly fractured on this one, but Kyllo was a limiting decision.

Fourth, the Ninth Circuit upheld the search in Kyllo before SCOTUS reversed - at Scalia's urging!

This is not a left/right issue.


Gritsforbreakfast said...

I actually don't think this is a left/right issue at all. Efforts to undermine the Fourth Amendment in the courts and in legislatures has been completely bipartisan. More's the pity. I fear 2 new Bush judges primarily because a) he's the one who'll be appointing them, and b) I've seen him appoint judicial activists like Priscilla Owen who would subvert any principle to enforce her desired policy outcomes from the bench.

Kyollo was a limiting decision in one sense, but it also was the origin of this Orwellian, not a search if we're looking for something illegal argument, so I view it as part of the trend away from Fourth Amendment strict construction. As you know, I'm not an attorney, but it seems to me the difference in our views may lie in the undefined gray area behind the question, "where does cyberspace reside?" -- in our computers, in the ether? -- and when we connect to it, does that connection constitute a waiver of the minimalist privacy rights that were retained in Kyollo in the home? I don't know, but my fear is that Caballes left the door open for future courts to answer such questions in the wrong way. Certainly prosecutors and police will press the point until somebody stops them, and they will find no limits on such strategies articulated in Caballes.

Thanks for stopping by!