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.