The fourth amendment and the law surrounding computer repair technicians

Introduction 

In this weeks entry, I will be re-exploring a very important topic! the question that a lot of people often bring up in different scenarios is whether or not law enforcement or the F.B.I needs consent in order to search a computer that you or somebody you know who has given the computer to a repair person in order to do maintenance on and the computer has "questionable" material on it. Is it considered an "illegal search and seizure" under the fourth amendment or can you be implicated? The short answer is yes, you can in fact can be implicated in "most" scenarios and under a varying degree of circumstances. Here is why the F.B.I can seize the computer without a warrant and go back and obtain one, in order to perform a computer forensics investigation on you.

What the CCIPS Manual by the F.B.I states under constitutional law 

"As discussed above in Section B.4, computer searches by repairman prior to contact with law enforcement are private searches and do not implicate the Fourth Amendment. Most commonly, law enforcement will use information revealed through a repairman's private search as a basis to secure a warrant for a full search of the computer. In some cases, however, law enforcement officers have relied on the consent of the repairman as the basis for a search of the computer that exceeds the scope of the initial private search" -F.B.I manual [1].

In order to break this down into simpler terms, the general rule of thumb that most cases revolve around is whether or not a person has "reasonable expectation" of privacy. In most cases related to computers and electronics, you "surrender" your fourth amendment rights when you relinquish control of them to a third party, as we will commonly see the example I thought of below and no longer have a "reasonable expectation" of privacy. This can be extended to e-mail servers, file servers, cloud computing, etc. That does not mean you should be fearful of using these services, but you must always read their privacy policy and see how they plan on using or handling your data. Always keep that in mind! this need to not apply to just legal researchers or lawyers, but all other parties involved.

First crude example (common case)

John Doe a twenty one year old college student takes his computer into a repair technician at fictional "We Supply Electronics" in order to have his network card replaced. The repair technician while on the machine "happens" to find racy pictures of John doing things he shouldn't be doing with under aged girls including drinking and engaging in risky "lude" sexual behavior. The repairmen then calls the F.B.I and asks them to take a look at it, fearful that he will loose his job, if his co-workers or boss find out what's on the machine. The F.B.I comes down take a look at the machine and also see the racy photos. As long as they have consent from the repair guy who worked on the computer, they are within their right to secure the computer without a warrant and go back and get a warrant from a judge stating what they are specifically looking for, in this case it might be "Child Pornography". In the meantime they are allowed to make duplicate copy of the hard-drive, place it in a static bag for forensic analysis, and the prosecution can use it as evidence in court if they are trying to build a case against Doe. In this case Doe's fourth amendment rights would not be violated due to the fact, that the case is within the scope of the circumstances.

Second crude example (rare case)

John Doe a twenty one year old college student takes his computer into a repair technician at fictional "We Supply Electronics" in order to have his network card replaced, but tells the repairs technicians they only have three days to work on the computer. The repair technician while on the machine "happens" to find racy pictures of John doing things he shouldn't be doing with under aged girls including drinking and engaging in risky "lude" sexual behavior on the fourth day, because John did not have time to pick up his computer. The repairmen then calls the F.B.I and asks them to take a look at it, fearful that he will loose his job if his co-workers or boss find out what's on the machine. They come down take a look at the machine and also see the photos. Even though they had consent from the repair guy who worked on the computer they are not within their right to secure a warrant from a judge stating what they are specifically looking for, in this case it might be "Child Pornography". In this case John Doe's fourth amendment rights WOULD be violated, because of fact that Doe only gave the repair technician three days to work on it and "We Supply Electronics" computer policy says they have to honor the customers wishes, coupled with the fact that they found the material on the fourth day! In this rare case it would be OUTSIDE the scope of circumstances.

Reference:

1. Cybercrime. "Computer Crime & Intellectual Property Section: U.S Department Of Justice", http://www.justice.gov/criminal/cybercrime/ssmanual/01ssma.html , CCIPS Manual. accessed 15 Nov 2012. 2009