Posted on 04/15/2010 12:49:03 PM PDT by nickcarraway
A federal judge from Florida ruled that a man who forgot to remove a thumb drive from a shared computer waived his Fourth Amendment rights to privacy claims to the content on the device.
According to Computerworld, the ruling by Judge Maurice Paul of the U.S. District Court for the northern district of Florida, was in response to a motion filed by Octavius Durdley an emergency paramedic with the Bradford County Emergency Services in Florida. Apparently, Durdley was charged last September with possessing and distributing child pornography based largely on evidence gathered from a personal thumb drive of his that he had inadvertently left behind in a shared work computer.
The ruling – which was decided last month – was analyzed this week by The Volokh Conspiracy, a blog comprised of several law professors.
“’Yes,’ says Judge Maurice Paul in United States v. Durdley, 2010 WL 916107 (N.D. Fla. 2010), handed down on March 11. I haven’t seen any cases quite like this, but I tend to think the decision is wrong. In this post, I wanted to explain the decision and then say why I find its reasoning rather unpersuasive,” argued blogger Orin Kerr, a George Washington University law professor. Durdley claimed that the information gathered from the thumb drive had resulted from a warrantless search of his personal property. Computerworld reported that he asked for the evidence from the thumb drive, and that gathered from a subsequent search of his house, to be suppressed asserting Fourth Amendment rights against unreasonable search and seizure.
The Fourth Amendment of the United State Constitution covers search and seizure rights, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Octavius Durdley?
Did they laugh him out of court?
Gotta remember to use TrueCrypt for those thumb drives.
I think the decision is wrong too. If you left a thumb drive with your banking/mortgage/credit etc details on it and someone decided to help themselves, I doubt the same court would be ruling you waived your privacy rights in making a silly mistake.
Dudley? Isn’t he the guy that got molested on Different Strokes?
That’s theft though, this case is akin to someone leaving a bag of illegal drugs on their desk at work.
Octavius Durdley...
That’s a good name for a rock band....
Probably not.
But I'm not sure how the prosecution was won, since the chain of custody is pretty damned bad on this case. Anyone could have uploaded horrible stuff and claimed Mr. Octavius owned the horrible stuff.
That is hardly the same thing. Say a criminal left a thumb drive and in the process of examining it to determine ownership someone discovered evidence that he had kidnapped a child it would hardly be something that privacy issues would override. What you are describing is someone else committing a crime which would be the misuse of banking, mortgage, credit info. That would be illegal. Discovering a picture of you committing a crime or in the act of committing a crime whether it be in a personal bag you left or on a usb drive has no presumption of privacy when left in a public place.
I’m surprised they didn’t try that because that would be an easier defense. Just say someone else did it.
You have no right to privacy with child porn.
burn the man at the stake. shoot him in the head.
That would be the way I’d argue it anyway. “Sure there was horrible stuff on that drive, but that doesn’t mean my client put it there.”
Finding and reporting information/evidence on a device left in plain sight is so substantially different from "helping yourself" via fraud and theft of banking/mortgage/credit details on the device that anyone who tried to use that reasoning to criticize the decision should expect ridicule.
The premise that there is no reasonable expectation of privacy on a shared computer -- especially a shared work computer -- is well established in case law. If you inadvertently leave storage media, whether in the form of a CD-ROM, or DVD, or USB thumb drive in the shared computer, then you open up the data for warrantless search just as much as if you piled it up in a nice neat box, labeled "valuable personal information", and left it at the curb with the trash cans. Using that information for criminal fraud activity is a crime; but looking at it in the first place is not. And if that information happens to provide probable cause to justify a warrant for your home and the rest of your personal effects, then the warrant and any evidence procured pursuant to that warrant is completely valid.
Exactly so.................
“How would this work in the non-digital world? What would happen if he brought his file folder or even big sealed envelope full of child porn to work? Would he have an expectation of privacy if he left it out on the break room table?”
After reading about the case I believe the analogy would be a file folder that contained files that others could easily access and may have had permission to access along with the illegal photos.
The drive was attached to a network. I don’t believe it had any access restrictions. The person who accessed the illegal files was not looking for them but stumbled upon them while looking for something else.
So if you forget to lock your house, then it’s a free for all? You’ve waived your 4th amendment?
I think his rights were violated. The 4th says “secure in their persons, houses, papers, and effects,”. I would think that the thumb drive would be included as an “effects” device. However, in trying to discover who the thumb drive belonged to, one would have to open the drive and look at files. Perhaps he’s got the pictures plastered in thumbprint form all over his desktop so that a viewer couldn’t miss them. In that case, he’s a loser (in more ways than one). There may be details of the case missing from the article that would explain the “discovery” of the porn. May he rot in Hell.
My employer takes it a step further. Any user of a company owner computer or network has no expectation of privacy. Contents of the drives and network communications are subject to inspection at any time.
Agreed. I’m completely against other people going through your files and personal belongings, but if you left something in public, and an innocent individual was to look through the stuff/thumb drive for some type of identification, and stumbled across evidence of illegal activity, it warrants further search and seizure, and is evidence in the open.
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