Friday, May 25, 2007

Password Protected? Not According to the 10th Circuit

Interesting questions, here:

The Fourth Amendment generally prohibits warrantless searches of an individual's home or possessions. There is an exception to the warrant requirement when someone consents to the search. Consent can be given by the person under investigation, or by a third party with control over or mutual access to the property being searched. Because the Fourth Amendment only prohibits "unreasonable searches and seizures," permission given by a third party who lacks the authority to consent will nevertheless legitimize a warrantless search if the consenter has "apparent authority," meaning that the police reasonably believed that the person had actual authority to control or use the property.

Under existing case law, only people with a key to a locked closet have apparent authority to consent to a search of that closet. Similarly, only people with the password to a locked computer have apparent authority to consent to a search of that device. In Andrus, the father did not have the password (or know how to use the computer) but the police say they did not have any reason to suspect this because they did not ask and did not turn the computer on. Then, they used forensic software that automatically bypassed any installed password.

The majority held that the police officers not only weren't obliged to ask whether the father used the computer, they had no obligation to check for a password before performing their forensic search. In dissent, Judge Monroe G. McKay criticized the agents' intentional blindness to the existence of password protection, when physical or digital locks are such a fundamental part of ascertaining whether a consenting person has actual or apparent authority to permit a police search. "(T)he unconstrained ability of law enforcement to use forensic software such at the EnCase program to bypass password protection without first determining whether such passwords have been enabled ... dangerously sidestep(s) the Fourth Amendment."

So 'permission to enter and search' includes password-locked (think padlocked) areas under the exceptions to the 4th's general prohibition of 'unreasonable search'?


HT: The Agitator

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