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Federal Internet Law & Policy
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Fourth Amendment :: Expectation of Privacy

Dont be a FOOL; The Law is Not DIY

Derived From: 1985 ECPA Report Chapter 2

The critical triggering phrase of the fourth amendment is “searches and seizures. ” If there is no search or seizure, then official behavior is not covered by the fourth amendment, and it need not be reasonable, based on probable cause, or carried out pursuant to a warrant. Although there may be statutory protections that require certain conduct, an individual does not have fourth amendment protections unless there is a search and seizure. The secondary triggering phrase of the fourth amendment is “unreasonable.” Even if official conduct is regarded as a search or seizure, there is no invasion of fourth amendment protections if the conduct is reasonable. Determination of reasonableness depends on the judicial balancing of the individual interest, generally regarded as a privacy interest, against the governmental interest, including law and order, national security, internal security, and the proper administration of the laws. Reasonableness generally entails a predicate of probable cause and, with many exceptions, the issuance of a warrant.

The meaning and scope of the fourth amendment have involved judicial construction of these key phrases. Definition of “searches” has come to be a crazy patchwork quilt, depending partly on whether the search involves a person’s body or home, partly on how public the activity is, partly on the degree of invasion or intrusiveness involved in conducting the search, partly on the facts of the case under consideration, and partly on who is on the Court.

Derived From: Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal InvestigationsPDF Computer Crime and Intellectual Property Section, Criminal Division, DOJ (2009) (NB: This is a rendition of the state of the law from law enforcement and reflects their views)

According to the Supreme Court, a "'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property," United States v. Jacobsen, 466 U.S. 109, 113 (1984), and the Court has also characterized the interception of intangible communications as a seizure. See Berger v. New York, 388 U.S. 41, 59-60 (1967). Furthermore, the Court has held that a "'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." Jacobsen, 466 U.S. at 113. If the government's conduct does not violate a person's "reasonable expectation of privacy," then formally it does not constitute a Fourth Amendment "search" and no warrant is required. See Illinois v. Andreas, 463 U.S. 765, 771 (1983). In addition, a warrantless search that violates a person's reasonable expectation of privacy will nonetheless be constitutional if it falls within an established exception to the warrant requirement. See Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Accordingly, investigators must consider two issues when asking whether a government search of a computer requires a warrant. First, does the search violate a reasonable expectation of privacy? And if so, is the search nonetheless permissible because it falls within an exception to the warrant requirement?

Reasonable Expectation of Privacy

A search is constitutional if it does not violate a person's "reasonable" or "legitimate" expectation of privacy. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) [See Katz providing more detail on case] . This inquiry embraces two discrete questions:

In most cases, the difficulty of contesting a defendant's subjective expectation of privacy focuses the analysis on the objective aspect of the Katz test, i.e., whether the individual's expectation of privacy was reasonable. No bright line rule indicates whether an expectation of privacy is constitutionally reasonable. See O'Connor v. Ortega, 480 U.S. 709, 715 (1987). For example, the Supreme Court has held that a person has a reasonable expectation of privacy in property located inside a person's home, see Payton v. New York, 445 U.S. 573, 589-90 (1980); in "the relative heat of various rooms in the home" revealed through the use of a thermal imager, see Kyllo v. United States, 533 U.S. 27, 34-35 (2001); in conversations taking place in an enclosed phone booth, see Katz, 389 U.S. at 352; and in the contents of opaque containers, see United States v. Ross, 456 U.S. 798, 822-23 (1982). In contrast, a person does not have a reasonable expectation of privacy in activities conducted in open fields, see Oliver v. United States, 466 U.S. 170, 177 (1984); in garbage deposited at the outskirts of real property, see California v. Greenwood, 486 U.S. 35, 40-41 (1988); or in a stranger's house that the person has entered without the owner's consent in order to commit a theft, see Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978).

Smith v. Maryland, 442 US 735, 750 (1979)

"Consistently with Katz , this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action. E. g., Rakas v. Illinois, 439 U. S. 128, 143, and n. 12 (1978); id., at 150, 151 (concurring opinion); id., at 164 (dissenting opinion); United States v. Chadwick, 433 U. S. 1, 7 (1977) ; United States v. Miller, 425 U. S. 435, 442 (1976) ; United States v. Dionisio, 410 U. S. 1, 14 (1973) ; Couch v. United States, 409 U. S. 322, 335-336 (1973) ; United States v. White, 401 U. S. 745, 752 (1971) (plurality opinion) ; Mancusi v. DeForte, 392 U. S. 364, 368 (1968) ; Terry v. Ohio, 392 U. S. 1, 9 (1968) . This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U. S., at 361 —whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id., at 351. The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,'" id., at 361— whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances. Id., at 353. [5] See Rakas v. Illinois, 439 U. S., at 143-144, n. 12 ; id., at 151 (concurring opinion); United States v. White, 401 U. S., at 752 (plurality opinion) ."

Third Party Doctrine

Individuals who retain a reasonable expectation of privacy in stored electronic information under their control may lose Fourth Amendment protections when they relinquish that control to third parties.

“the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." - United States v. Miller, 425 U.S. 435, 443 (1976)

“when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs, the Fourth Amendment does not prohibit governmental use of that information. . . Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now non-private information.” - King v. U.S. , 55 F.3rd 1193 (6 th Cir. 1995)

See also Smith v Maryland, 442 US 735, 744 (1979); United States v. White, 401 U. S., at 752 (plurality opinion) ; Hoffa v. United States, 385 U. S. 293, 302 (1966) ; Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952); Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477 (2006).

For example, an individual may offer a container of electronic information to a third party by bringing a malfunctioning computer to a repair shop or by shipping a floppy diskette in the mail to a friend. Alternatively, a user may transmit information to third parties electronically, such as by sending data across the Internet, or a user may leave information on a shared computer network. When law enforcement agents learn of information possessed by third parties that may provide evidence of a crime, they may wish to inspect it.

Whether the Fourth Amendment requires them to obtain a warrant before examining the information depends in part upon whether the third-party possession has eliminated the individual's reasonable expectation of privacy.

To analyze third-party possession issues, it helps first to distinguish between possession by a carrier in the course of transmission to an intended recipient and subsequent possession by the intended recipient. For example, if A hires B to carry a package to C, A's reasonable expectation of privacy in the contents of the package during the time that B carries the package on its way to C may be different than A's reasonable expectation of privacy after C has received the package. During transmission, contents generally retain Fourth Amendment protection. The government ordinarily may not examine the contents of a closed container in the course of transmission without a warrant. Government intrusion and examination of the contents ordinarily violates the reasonable expectation of privacy of both the sender and receiver. See United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992). But see United States v. Young, 350 F.3d 1302, 1308 (11th Cir. 2003) (holding that Federal Express's terms of service, which allowed it to access customers' packages, eliminated customer's reasonable expectation of privacy in package); United States v. Walker, 20 F. Supp. 2d 971, 973-74 (S.D.W.Va. 1998) (concluding that packages sent to an alias in furtherance of a criminal scheme do not support a reasonable expectation of privacy). This rule applies regardless of whether the carrier is owned by the government or a private company. Compare Ex Parte Jackson, 96 U.S. (6 Otto) 727, 733 (1877) (public carrier), with Walter v. United States, 447 U.S. 649, 651 (1980) (private carrier).

Government acquisition of an intangible electronic signal in the course of transmission may also implicate the Fourth Amendment. See Berger v. New York, 388 U.S. 41, 58-60 (1967) (applying the Fourth Amendment to a wire communication in the context of a wiretap). The boundaries of the Fourth Amendment in such cases remain hazy, however, because Congress addressed the Fourth Amendment concerns identified in Berger by passing Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2522. Title III, which is discussed fully in Chapter 4, provides a comprehensive statutory framework that regulates real-time monitoring of wire and electronic communications. Its scope encompasses, and in many significant ways exceeds, the protection offered by the Fourth Amendment. See United States v. Torres, 751 F.2d 875, 884 (7th Cir. 1984); Chandler v. United States Army, 125 F.3d 1296, 1298 (9th Cir. 1997). As a practical matter, then, the monitoring of wire and electronic communications in the course of transmission generally raises many statutory questions, but few constitutional ones. See generally Chapter 4.Ordinarily, once an item has been received by the intended recipient, the sender's reasonable expectation of privacy in the item terminates. See United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995) (sender's expectation of privacy in letter "terminates upon delivery").

More generally, the Supreme Court has repeatedly held that the Fourth Amendment is not violated when information revealed to a third party is disclosed by the third party to the government, regardless of any subjective expectation that the third parties will keep the information confidential. For example, in United States v. Miller, 425 U.S. 435, 443 (1976), the Court held that the Fourth Amendment does not protect bank account information that account holders divulge to their banks. By placing information under the control of a third party, the Court stated, an account holder assumes the risk that the information will be conveyed to the government. Id. According to the Court, "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Id. (citing Hoffa v. United States, 385 U.S. 293, 302 (1966)). See also SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735, 743 (1984) ("when a person communicates information to a third party . . . he cannot object if the third party conveys that information or records thereof to law enforcement authorities"); Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (finding no reasonable expectation of privacy in phone numbers dialed by owner of a telephone because act of dialing the number effectively tells the number to the phone company); Couch v. United States, 409 U.S. 322, 335 (1973) (holding that government may subpoena accountant for client information given to accountant by client because client retains no reasonable expectation of privacy in information given to accountant).

Courts have applied these principles to electronic communications. For example, in United States v. Horowitz, 806 F.2d 1222 (4th Cir. 1986), the defendant emailed confidential pricing information relating to his employer to his employer's competitor. After the FBI searched the competitor's computers and found the pricing information, the defendant claimed that the search violated his Fourth Amendment rights. The Fourth Circuit disagreed, holding that the defendant relinquished his interest in and control over the information by sending it to the competitor for the competitor's future use. See id. at 1224- 26. See also Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (stating that sender of email "would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose 'expectation of privacy ordinarily terminates upon delivery' of the letter"); United States v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990) (defendant had no reasonable expectation of privacy in message sent to a pager); United States v. Charbonneau, 979 F. Supp. 1177, 1184 (S.D. Ohio 1997) (stating that a sender of an email "cannot be afforded a reasonable expectation of privacy once that message is received.").

Defendants will occasionally raise a Fourth Amendment challenge to the acquisition of account records and subscriber information held by Internet service providers where law enforcement obtained the records using less process than a search warrant. As discussed in Chapter 3.D, the Stored Communications Act permits the government to obtain transactional records with an "articulable facts" court order and specified subscriber information with a subpoena. See 18 U.S.C. §§ 2701-2712. These statutory procedures comply with the Fourth Amendment because customers of communication service providers do not have a reasonable expectation of privacy in customer account records maintained by and for the provider's business. See United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) ("Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation."); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001) (finding no Fourth Amendment protection for network account holder's basic subscriber information obtained from communication service provider). This rule accords with prior cases finding no Fourth Amendment protection in customer account records. See, e.g., United States v. Fregoso, 60 F.3d 1314, 1321 (8th Cir. 1995) (telephone records); In re Grand Jury Proceedings, 827 F.2d 301, 302-03 (8th Cir. 1987) (Western Union customer records). Similarly, use of a pen register to capture email to/from address information or Internet Protocol addresses of websites provided to an Internet service provider for routing communications does not implicate the Fourth Amendment. See United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (email and Internet users have no reasonable expectation of privacy in to/from addresses of their messages or in IP addresses of websites visited).

Although an individual normally loses a reasonable expectation of privacy in an item delivered to a recipient, there is an exception to this rule when the individual can reasonably expect to retain control over the item and its contents. When a person leaves a package with a third party for temporary safekeeping, for example, she usually retains control of the package and thus retains a reasonable expectation of privacy in its contents. See, e.g., United States v. James, 353 F.3d 606, 614 (8th Cir. 2003) (finding that defendant retained Fourth Amendment rights in sealed envelope containing computer disks which he had left with a friend for storage); United States v. Most, 876 F.2d 191, 197- 98 (D.C. Cir. 1989) (finding reasonable expectation of privacy in contents of plastic bag left with grocery store clerk); United States v. Barry, 853 F.2d 1479, 1481-83 (8th Cir. 1988) (finding reasonable expectation of privacy in locked suitcase stored at airport baggage counter); United States v. Presler, 610 F.2d 1206, 1213-14 (4th Cir. 1979) (finding reasonable expectation of privacy in locked briefcases stored with defendant's friend for safekeeping).In some cases, the sender may initially retain a right to control the third party's possession, but may lose that right over time. The general rule is that the sender's Fourth Amendment rights dissipate as the sender's right to control the third party's possession diminishes. For example, in United States v. Poulsen, 41 F.3d 1330 (9th Cir. 1994), overruled on other grounds, United States v. W. R. Grace, 526 F.3d 499 (9th Cir. 2008) (en banc) computer hacker Kevin Poulsen left computer tapes in a locker at a commercial storage facility but neglected to pay rent for the locker. Following a warrantless search of the facility, the government sought to use the tapes against Poulsen. The Ninth Circuit held that the search did not violate Poulsen's reasonable expectation of privacy because under state law Poulsen's failure to pay rent extinguished his right to access the tapes. See id. at 1337. See also United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997) ("Once a hotel guest's rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room." (internal quotation marks omitted)).

See also

Use of Specialized Technology to Obtain Information

The government's use of innovative technology to obtain information about a target can implicate the Fourth Amendment. See Kyllo v. United States, 533 U.S. 27 (2001). In Kyllo, the Supreme Court held that the warrantless use of a thermal imager to reveal the relative amount of heat released from the various rooms of a suspect's home constituted a search that violated the Fourth Amendment. In particular, the Court held that where law enforcement "uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without a physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." Id. at 40. Whether a technology falls within the scope of the Kyllo rule depends on at least two factors. First, the use of technology should not implicate Kyllo if the technology is in "general public use," see id. at 34, 39 n.6, although courts have not yet defined the standard for determining whether a given technology meets this requirement. Second, the Supreme Court restricted its holding in Kyllo to the use of technology that reveals information about the interior of the home. See id. at 40 ("We have said that the Fourth Amendment draws a firm line at the entrance to the house." (internal quotation marks omitted)).

Open Source / Electronic Communications Privacy Act

Where an individual lacks an expectation of privacy, law enforcement officers do not need a warrant to listen in. See Fourth Amendment. [Andreas] [Katz] ECPA would not bar "intercepting" the communications in instances where the systems are configured to be publicly accessible.

(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person- (i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;

[18 U.S.C. § 2511(2)(g)(i)] [See also 18 U.S.C. § 2511(2)(g)].

Congress intended this language to permit the interception of an electronic communication that has been posted to a public bulletin board, a public chat room, or a Usenet newsgroup. See S. Rep. No. 99-541, at 36 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3590 (discussing bulletin boards). This exception may apply even if users are required to register and agree to terms of use in order to access the communication. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1321-22 (11th Cir. 2006) (electronic bulletin board that required visitors to register, obtain a password, and certify that they were not associated with DirecTV was accessible to the public).

[Search Seizure 2009 p 182] Examples of this may include public chat rooms, websites or IRC channels.

Where one has an expectation of privacy is not always clear. If I set up a rendezvous with an acquaintance in a secluded public park in the middle of the day, sitting on a solitary park bench, do we have an expectation of privacy? According to DOJ,

This inquiry embraces two discrete questions: first, whether the individual's conduct reflects "an actual (subjective) expectation of privacy," and second, whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable.'" In most cases, the difficulty of contesting a defendant's subjective expectation of privacy focuses the analysis on the objective aspect of the Katz test, i.e., whether the individual's expectation of privacy was reasonable.

[Search & Seizure Manual Sec. I.B.1.] One can general expect that the contents of a closed container are private. A computer is considered a “closed container” and thus an owner may have an expectation of privacy. [Search & Seizure Manual Sec. I.B.1.] [Barth 936-37] [Reyes 832-33] [Lynch 287] [Chan 535] [Blas 21]

Reasonable Expectation of privacy in Computers as Storage Devices

The most basic Fourth Amendment question in computer cases asks whether an individual enjoys a reasonable expectation of privacy in electronic information stored within computers (or other electronic storage devices) under the individual's control. For example, do individuals have a reasonable expectation of privacy in the contents of their laptop computers, USB drives, or cell phones? If the answer is "yes," then the government ordinarily must obtain a warrant, or fall within an exception to the warrant requirement, before it accesses the information stored inside. When confronted with this issue, courts have analogized the expectation of privacy in a computer to the expectation of privacy in closed containers such as suitcases, footlockers, or briefcases. Because individuals generally retain a reasonable expectation of privacy in the contents of closed containers, see United States v. Ross, 456 U.S. 798, 822-23 (1982), they also generally retain a reasonable expectation of privacy in data held within electronic storage devices. Accordingly, accessing information stored in a computer ordinarily will implicate the owner's reasonable expectation of privacy in the information. See United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (finding reasonable expectation of privacy in a personal computer); United States v. Buckner, 473 F.3d 551, 554 n.2 (4th Cir. 2007) (same); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) ("Individuals generally possess a reasonable expectation of privacy in their home computers."); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001); United States v. Al-Marri, 230 F. Supp. 2d 535, 541 (S.D.N.Y. 2002) ("Courts have uniformly agreed that computers should be treated as if they were closed containers."); United States v. Reyes, 922 F. Supp. 818, 832-33 (S.D.N.Y. 1996) (finding reasonable expectation of privacy in data stored in a pager); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995) (same); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993) (same); see also United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007) ("A personal computer is often a repository for private information the computer's owner does not intend to share with others. For most people, their computers are their most private spaces." (internal quotation omitted)).Although courts have generally agreed that electronic storage devices can be analogized to closed containers, they have reached differing conclusions about whether a computer or other storage device should be classified as a single closed container or whether each individual file stored within a computer or storage device should be treated as a separate closed container. In two cases, the Fifth Circuit determined that a computer disk containing multiple files is a single container for Fourth Amendment purposes. First, in United States v. Runyan, 275 F.3d 449, 464-65 (5th Cir. 2001), in which private parties had searched certain files and found child pornography, the Fifth Circuit held that the police did not exceed the scope of the private search when they examined additional files on any disk that had been, in part, privately searched. Analogizing a disk to a closed container, the court explained that "police do not exceed the private search when they examine more items within a closed container than did the private searchers." Id. at 464. In a subsequent case, the Fifth Circuit held that when a warrantless search of a portion of a computer and zip disk had been justified, the defendant no longer retained any reasonable expectation of privacy in the remaining contents of the computer and disk, and thus a comprehensive search by law enforcement personnel did not violate the Fourth Amendment. See United States v. Slanina, 283 F.3d 670, 680 (5th Cir. 2002), vacated on other grounds, 537 U.S. 802 (2002), aff'd, 359 F.3d 356, 358 (5th Cir. 2004). See also People v. Emerson, 766 N.Y.S.2d 482, 488 (N.Y. Sup. Ct. 2003) (adopting intermediate position of treating computer folders rather than individual files as closed containers); United States v. Beusch, 596 F.2d 871, 876-77 (9th Cir. 1979) (holding that when a physical ledger contains some information that falls within the scope of a warrant, law enforcement may seize the entire ledger, rather than individual responsive pages).Other appellate courts have treated individual computer files as separate entities, at least in the search warrant context. See, e.g., Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001) (approving off-site review of a computer to "separate relevant files from unrelated files"). Similarly, the Tenth Circuit has refused to allow such exhaustive searches of a computer's hard drive in the absence of a warrant or some exception to the warrant requirement. See United States v. Carey, 172 F.3d 1268, 1273-75 (10th Cir. 1999) (ruling that agent exceeded the scope of a warrant to search for evidence of drug sales when he "abandoned that search" and instead searched for evidence of child pornography for five hours). In particular, the Tenth Circuit cautioned in a later case that "[b]ecause computers can hold so much information touching on many different areas of a person's life, there is greater potential for the 'intermingling' of documents and a consequent invasion of privacy when police execute a search for evidence on a computer." United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001).Although individuals generally retain a reasonable expectation of privacy in computers under their control, special circumstances may eliminate that expectation. For example, an individual will not retain a reasonable expectation of privacy in information that the person has made openly available. See Katz v. United States, 389 U.S. 347, 351 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."); Wilson v. Moreau, 440 F. Supp. 2d 81, 104 (D.R.I. 2006) (finding no expectation of privacy in documents user stored on computers available for public use in a public library); United States v. Gines-Perez, 214 F. Supp. 2d 205, 224-26 (D.P.R. 2002) (finding no reasonable expectation of privacy in information placed on the Internet); United States v. Butler, 151 F. Supp. 2d 82, 83-84 (D. Me. 2001) (finding no reasonable expectation of privacy in hard drives of shared university computers). Thus, several courts have held that a defendant has no reasonable expectation of privacy in files shared freely with others. See United States v. King, 509 F.3d 1338, 1341-42 (11th Cir. 2007) (holding that defendant did not have a legitimate expectation of privacy in the contents of a "shared drive" of his laptop while it was connected to a network); United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir. 2007) (holding no reasonable expectation of privacy exists where defendant networked his computer "for the express purpose of sharing files"); United States v. Stults, 2007 WL 4284721, at *1 (D. Neb. Dec. 3, 2007) (finding no reasonable expectation of privacy in computer files that the defendant made available using a peer-topeer file sharing program). Similarly, in United States v. David, 756 F. Supp. 1385 (D. Nev. 1991), agents looking over the defendant's shoulder read the defendant's password from the screen as the defendant typed his password into a handheld computer. The court found no Fourth Amendment violation in obtaining the password because the defendant did not enjoy a reasonable expectation of privacy "in the display that appeared on the screen." Id. at 1390. See also United States v. Gorshkov, 2001 WL 1024026, at *2 (W.D. Wash. May 23, 2001) (holding that defendant did not have a reasonable expectation of privacy in use of a private computer network when undercover federal agents looked over his shoulder, when he did not own the computer he used, and when he knew that the system administrator could monitor his activities). Nor will individuals generally enjoy a reasonable expectation of privacy in the contents of computers they have stolen or obtained by fraud. See United States v. Caymen, 404 F.3d 1196, 1200 (9th Cir. 2005); United States v. Lyons, 992 F.2d 1029, 1031-32 (10th Cir. 1993).

Expectation of Privacy in the Workplace (4th Amendment)

Bank Records

United States v. Miller, 425 U.S. 435 (1976) "Court ruled that a bank customer’s financial record is the property of the bank, and thus he or she has no legitimate “expectation of privacy” in these records."