Tag Archives: encryption

Article – Riley’s Implications for Fourth Amendment Protection in the Cloud

The United States Supreme Court held in Riley v. California that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.

It seems like the what is on the physical cell phone is just the root of the search and seizure issue.  Many cell phones are connected to much more information than the physical device can hold.  Extending the capacity to access documents, cloud storage can vastly increase what a cell phone has access to.

Acting as an extension of the physical cell phone, it is not completely clear what the Fourth Amendment search and seizure ramifications are.

Riley’s protection of cloud-based data for cell phone searches, however, does not address the broader question of whether information stored in the cloud is entitled to Fourth Amendment protection in other contexts. Indeed, the Court went out of its way to state that Riley did ‘not implicate the question [of] whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.’ The Court also distinguished the facts of Riley from those in Smith v. Maryland, one of the principal cases to apply the so-called “third-party doctrine.” The third-party doctrine, which provides that information voluntarily revealed to third parties is not protected by the Fourth Amendment, may pose the biggest obstacle to whether cloud-based data receives Fourth Amendment protection, since any data stored in the cloud is necessarily conveyed to third-party servers. Yet by sidestepping the third-party doctrine in Riley, the Court never had to address how the doctrine applies to private data stored across remote servers.

Nevertheless, while failing to explicitly afford Fourth Amendment protection to cloud-based data, Riley still provides the best evidence yet that the Court may be ready to reconsider the third-party doctrine and to recognize Fourth Amendment protection for personal data stored in the cloud.

— Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud, 124 Yale L.J. F. 73 (2014), http://www.yalelawjournal.org/forum/rileys-implications-in-the-cloud.

 

The Fourth Amendment and Encrypted Documents

I stumbled across this story recently about an Arizona man who encrypted his hard drive before the police seized it for allegedly containing child pornography.

Law enforcement suspected the defendant of sharing child-porn images and video on the internet in 2011. Tipped off by Child Protective Services (a state agency) law enforcement started investigating his online behavior for allegedly sharing child pornography.  Fast-forward nearly into the investigation, Maricopa County Sheriff’s Organization took the suspect into custody because they linked him to 70 photos and videos of child pornography on the internet.  He is charged with 10 counts sexual exploitation of a minor.

Looking for additional evidence law enforcement seized the suspect’s computer and tried to recover anything that may relate to their investigation.  The problem is the hard drive was completely encrypted using the super-strong True Crypt software.  So far law enforcement has not been able to breach the encryption.  It is likely the prosecutor has more than enough hard evidence against the defendant without the unencrypted contents of the hard drive.

The use of encryption is something the general public is starting to embrace.  With the revelations that governments around the world, primarily the National Security Agency (NSA), are spying on anyone and everyone, users of technology are starting to become more privacy conscious.  However it still unclear how the encrypted files will impact the Fourth Amendment, which protects citizens from unreasonable searches and seizures by the government.  With the case of encryption, the government has successfully seized the item, but is not able to see the contents.

Perhaps the litmus test for how encryption will be handled in the future lies with how the Lavabit case is decided.