Delete Your Porns: Court Says You Have No Right To Privacy When Your Computer Is Repaired

Evidence uncovered by retail store technicians (i.e. kiddie porn), is legally admissible as evidence in court because, “If a person is aware of, or freely grants to a third party, potential access to his computer contents, he has knowingly exposed the contents of his computer to the public and has lost any reasonable expectation of privacy in those contents…,” the Superior Court of Pennsylvania ruled December 5th. The case hinged on the question of whether kiddie porn a Circuit City tech found could be admitted as evidence, overturning a lower court’s decision. The Superior Court of PA also referred to codecs, computer video compression and decompression software, as “code X.”

Police Blotter: Can Circuit City techs legally peruse files? [ZDNET]
(Photo: jadakatt)

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  1. num1skeptic says:

    pedophiles deserve to rot in hell, but i think that is bull sh*t if someone can go through my files and turn me in for illegally downloaded movies or music. it should still be part of some sort of understood privacy policy. i mean what if i downloaded pictures of marijuana plants, and get turned in. all i got to say is the tech better hide for a long time.

  2. IrisMR says:

    Well, that goes without saying that if anyone finds something that is highly criminal content they should report said person to police. And they should then proceed to the removal of his testicles with a rusty ax.

    …Aha. Code X.

  3. num1skeptic says:

    @IrisMR: why stop with the testes?

  4. ancientsociety says:

    So let’s say I let a plumber or repairman into my home. Is the court saying I have no “expectation of privacy” in such a situation and would have no recourse if, say, said repairman was found rifling thru my wife’s underwear?

  5. kepler11 says:

    @num1skeptic: well, that’s not really a good analogy. It is not illegal to have pictures of pot plants. It *is* illegal to have pictures of child porn.

    And for those who want to invoke an argument about privacy or right against self-incrimination when your car’s black box shows you were speeding at the time of the accident, as courts have said before, you have the right not to have to give evidence incriminating yourself. However, you do not any inferred right to prevent such evidence from *being given*.

  6. num1skeptic says:

    @kepler11: yeah the pot plant was bad example, but the music and movies are what i’d be afraid of getting turned in for. did you see how much they fined that other woman? and i have hundreds of gigs worth.

  7. num1skeptic says:

    @num1skeptic: wouldn’t have to look hard to find my music collection, it only takes up %95 of my drive space. lol.

  8. kepler11 says:

    @ancientsociety: It is not the plumber or repairman’s job to be rifling through your wife’s underwear. It is the job of the computer guy to be rifling through your hard drive.

    If you stashed a whole load of cocaine behind the kitchen sink, then yes, the plumber might have legitimate a reason to call the police.

  9. clevershark says:

    Well duh.

  10. trollkiller says:

    @ancientsociety: Bad analogy unless your wife’s underwear is in the sink.

  11. calvinneal says:

    The problem with all this of coarse is not that any of us should expect privacy when we hand off our technology to third parties. Courts have settled that years ago. The question is the chain of evidence. Would it not be possible for one of the techs at an electronics store to load the stuff themselves and then call the police. Such stuff has happened.If possible, everyone should be wiping their hard drives before sending anything out! Never ever give anyone a clue as to your income, passwords or your politics. Its no ones damn business. The courts really do not know how any of this stuff works and You are guilty until proven innocent.

  12. coan_net says:

    When I was in school to be a network / PC guy, I remember a conversation like this coming up – with the conclusion being something like it is NOT ok for us to go snooping through a computer we are repairing, BUT if we did happen to come across something illegal (like kiddie porn), then we needed to alert the proper authorities right away.

  13. JollyJumjuck says:

    This is the logical conclusion of these types of laws:

    [www.pbfcomics.com]

  14. GOKOR says:

    @num1skeptic: The difference with music and movies is that the person working on your computer will likely not care about that.

    They are legally required to turn you in for the other stuff.

  15. Sweetz says:

    Solution A: Learn to fix your own computer and don’t worry about BestBuy going through your files.

    Solution B: Flash drives are teh bomb.

  16. num1skeptic says:

    i’ve heard of techs stealing valuble software (especially when working on business p/c’s) for their own personal gain.

  17. Amelie says:

    The key phrase is this: “”If a person is aware of, or freely grants to a third party, potential access to his computer contents…..”

    If you are keeping illegal activities on your computer, then the onus on you to delete it, before freely giving it to a stranger.

  18. NefariousNewt says:

    @kepler11: Agreed. Plus, you’ve got to be pretty stupid to leave the kiddie porn on the machine when you know it’s going out into the wild, so this guy should be convicted of just being stupid. This reminds me of the recent story of the bank robber (I think it was a bank robber) who drove his car to a police station, thinking it was the last place anyone would look for him. Some guys just aren’t that smart.

  19. Curiosity says:

    Interestly enough this doesn’t just apply to illicit activity, but (as always) the people who do borderline activity give society reason to debate the ramifications of the law.

    For instance, what about pictures of your mate? or business plans? or that invention you are working on? or how bout your credit card numbers? How bout nonvaluable information that you just don’t want others looking at.

    Ironically this is the basis usually for Attorney-client privilege [en.wikipedia.org] – that to have privacy, even if potentally incriminating, serves a higher purpose.

    Also as a note, many statutes do not consider the use of child pornography when determining intent. For instance reporters [www.ktvu.com] having it without an intent to do a lewd act or ironically Borders selling the book “Lolita” could be convicted [www.chicagotribune.com],0,3834789.story.

  20. Amelie says:

    The guy who was caught is named, “Kenneth Sodomsky.”

  21. Buran says:

    @kepler11: No, it’s his job to only look at what he has to look at to fix what is wrong.

    Haven’t we been over this countless times with the Geek Squad stories?

  22. Curiosity says:
  23. dysthymia says:

    let’s say, for the sake of my analogy, that I am a mafia hitman that does not know how to fix my BMW. And during a job, when the guy still in my trunk, my car is making a weird noise and I happen to be near a dealership. I take the car in and I say the noise comes from the engine, and they open the trunk.

    I can’t say in court that because I didn’t allow them to open the trunk, it is illegal to be charged with kidnapping /murder (is up to you how good I am as hitman).

    I dont know if this is a good analogy, but I just wanted to feel like a hitman driving a BMW for 5 seconds.

  24. num1skeptic says:

    @zouxou: too funny.

  25. num1skeptic says:

    isn’t sodomy illegal? i think there’s still and old law in the books of indiana that says it is……..
    so delete all your gay porn buran. lol. ok sorry i just got to give you a hard time because of the way you trashed me a few days back.

  26. Gopher bond says:

    Back-up your files, keep them in a safe, if something bad happens to your computer and you can’t fix it yourself, wipe the hard drive, junk it and buy a new one.

    If you can’t do the above, you shouldn’t own a computer. If you can’t do the above and you’re a child pornographer then you get what you deserve.

  27. Leiterfluid says:

    As someone who’s worked in the IT industry for more than 13 years, let me point out a few things.

    1) The person who brought in the computer had no legal expectation of privacy. Anyone who watches Law & order probably knows that the police can’t just search his hard drive without a warrant. However, the technicians, being the custodians of his machine, did have legal access to his hard drive, and can present the data to the authorities without a warrant (hence the recent ruling)

    2) The fourth amendment to the U.S. Constitution protections you from unreasonable search and seizure from government agencies, not private parties.

    3)The Third Immutable Law of Computer Security states: “If a bad guy has unrestricted physical access to your computer, it’s not your computer anymore”

  28. James says:

    Whoah whoah whoah. What if I find a laptop with trade secrets on it and sell it?

  29. UCLAJason says:

    From the Case:
    “Pennsylvania has adopted the theory of abandonment, which applies as long as improper police conduct did not induce a defendant’s desertion of his personal property. Pursuant to this legal construct, when an individual evidences an intent to relinquish control over personal property, he or she has abandoned a privacy interest in property and cannot object to any ensuing search of the item by police. Abandonment revolves around the issue of intent, which is determined from words, acts, and all relevant circumstances existing at the time the property is purportedly deserted.”
    The court goes on to say:
    “The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.”

  30. SacraBos says:

    @James: That would never happ… oh, wait.

  31. UCLAJason says:

    @calvinneal: Of course chain of evidence is a problem here. If you have a good lawyer then you will try to keep the evidence out on other exclusionary grounds. Further, though I don’t know that much about computers, I think there is a way to tell when images were loaded on to your computer. So if the tech guy load the pics it will be easy to exclude by showing that the computer was not in your possession when they were loaded.

  32. num1skeptic says:

    so is animal porn illegal? just askin because i’m taking my pc in soon and that chick doing the horse is my screen saver.

    and why are there cats in the picture above? they are arousing me. <– sick joke!

  33. mtaylor924 says:

    @num1skeptic: Actually sodomy is not illegal anymore. The US Supreme Court struck down these laws as an invasion of privacy:
    [en.wikipedia.org]

  34. Buran says:

    @dysthymia: If you locked the trunk, and gave them a valet key, then I would guess that a good lawyer would argue that they didn’t have permission to look in there. Repair shops aren’t the police and can’t go breaking in, and even if they think something is fishy they have to have probable cause and call the police.

    If they break in, can’t they be charged with destruction of property and/or trespassing?

  35. TechnoDestructo says:

    Everyone who talks about how to ensure that no one will ever find their kiddy porn is now being investigated.

  36. faust1200 says:

    I understand that a person sexually violating an animal is illegal. But what about an animal violating a person?? [break.com]

  37. scoosdad says:

    @num1skeptic: “and why are there cats in the picture above? they are arousing me. <– sick joke!”

    Kitty….porn

  38. num1skeptic says:

    i like the 60 minute specials where they coaz the pedophiles to bring condoms and go in the house and get naked. then in comes the cameras, and waiting outside are the police. hilarious!

  39. num1skeptic says:

    @scoosdad: hilarious!

  40. Curiosity says:

    Note the Opinion can be found at COMMONWEALTH OF PENNSYLVANIA v. KENNETH F. SODOMSKY [www.superior.court.state.pa.us]

    Not saying the court is in the end wrong, the theory of abandonment seems to fly in the face of the traditional notion of bailements.

    BAILMENT – A legal relationship created when a person gives property to someone else for safekeeping. To create a bailment the other party must knowingly have exclusive control over the property. The receiver must use reasonable care to protect the property. Mr. Justice Story says, that a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust.

    It seems that then to let anyone carry your luggage to your room would allow the police to search it.

  41. TWinter says:

    @num1skeptic: Interesting that you should bring up sodomy here – the supreme court overturned all the state sodomy laws in 2003. The basic justification for overturning those laws was that consenting adults have a right to privacy when it comes to what they do in the bedroom.

  42. sftl99 says:

    I used to work for Gateway and you wouldn’t believe the amount of crap the techs took off of people’s computers. They had plenty of home brew content as well. So make sure you backup and delete all remnants of you/your girlfriend/your naked dog before you ever take your compy in for repair!

  43. UCLAJason says:

    @Curiosity:
    Bailements do not seem to come up in 4th amendment right to privacy cases. The direction of the courts (at least in Pennsylvania where this case occurred) has been if you give your property to someone to hold for you there is no right to privacy.

  44. Geekybiker says:

    So stick the porn in a password protected directory. That should constitute a expectation of privacy even if you give your computer to a 3rd party.

  45. num1skeptic says:

    @TWinter: i didn’t bring it up, the guy’s name was kenneth sodomsky. but still i give you points for trying.

    besides i can tell you from experience, its not smart to gay bash on this site.

  46. @num1skeptic: Reformat… Reformat long and reformat hard.

  47. @Geekybiker: Or just keep it on a seperate HDD…

  48. GreatCaesarsGhost says:

    Privacy issues aside, if you’re engaged in the worst kinds of illegal activities, don’t document anything. And if you do, keep that documentation under lock and key. Don’t let anyone know that computer even exists. To turn it over to a perfect stranger to hold onto for a few weeks is….Darwinian.

  49. kemikos says:

    The question I’m surprised no one has asked is how would this ruling affect the “Geek Squad leechers”? If, legally speaking, a repair customer “has knowingly exposed the contents of his computer to the public” and “lost any reasonable expectation of privacy”, then the G.S. techs haven’t done anything illegal, have they? Sleazy, yes, but not illegal…

  50. FreemanB says:

    It doesn’t matter if the files are password-protected, encrypted, hidden, or translated into Klingon. Once you surrender your computer to a third party, you lose any LEGAL expectation of privacy. It may be against company policy for them to snoop through your computer, but anything they find can be admitted in a court of law. While working on a computer, there are a thousand different ways you could see filenames that make you suspicious of their contents, all without doing anything outside of normal checks. Even if the Geek Squad purposefully went through all of your files and found evidence that way, all you could do is try to file a civil suit against Best Buy. The files themselves would still be admissible as evidence in a criminal investigation because the police were not involved in the search.

    Government agencies are much more restricted on what they can do. If a search warrant allows police to search your computer for evidence of drug deals and they find evidence of child pornography, the rules of evidence say that they have to stop and amend the search warrant before actively searching for more evidence on that subject.(They can continue searching for evidence covered under the original warrant)

    As for a technician planting evidence on your hard drive, they would also have to fake the timestamps so that it looked like it happened when the computer was in your possession as well as fake evidence of how the files were obtained. Then they would also have to erase all of the evidence that they manipulated that evidence. There have been several cases where it was proven that files were placed on someone’s computer by an outside party, either to frame them or simply to hide them. For computer evidence to hold up in court, you need to show a lot more than that it was simply present on the computer.

  51. cde says:

    Bailement still applies. It is just that the contract signed with BB/CC/Random Tech in store specifically allows them to search or access files, regardless if needed or not, as a matter of CYA by the tech and store.

    What makes this matter different is that kiddy porn carries affirmative-action statures, where it is illegal NOT to report it if found.

    Unlike other potentially illegal things, like bsdm porn or dildos in certain states.

  52. I actually have a family friend, the Rev. Stephen Hernandez, formerly of Fall River, MA, who, being a genius of the highest order, brought his computer in for repair. Uh oh. What do you think the techs found on his machine? I’ll give you a hint. It wasn’t a coupon for free iced cream.

  53. cde says:

    @FreemanB: You are wrong. You loose any expectation of privacy to open/free access files because they are 1) in “plain sight” and 2) the contract signed with BB/CC/Etc. Encrypted and password protected files would preserve your expectation of privacy, as well as allowing you to exercise any DMCA/Computer Trespassing laws to your favor.

    It’s like the difference of not having any expectation of privacy from photographs while at the beach, or your front yard, and your expectation of privacy behind closed doors/your house.

    If you invite someone in your house, but keep your door or cabinet closed, you only loose the expectation of privacy in open-sight areas.

  54. cde says:

    @SonOfMagicFact: Way to pick your family friends…

  55. rooben says:

    Think about this not in the P0rn perspective…the court said that giving them access is equivilent to giving the public access, and there should be no expectation of privacy. Does this sound like they would have the right to display to the public EVERYTHING on your hard drive? I think there has to be a difference between a trusted professional and the public – this should fall into privileged information.
    In this light, company secrets, personal letters/pictures, encrypted folders, bank accounts/records – we should EXPECT that if Geek Squad has my computer, that there is no repercussion for them distributing any of that information???

  56. uricmu says:

    @kepler11: The job of the computer technician is not to “ruffle through your hard drive”, the same way that the guy changing your car filters doesn’t have to go through your glove compartment or steal your ezpass. It’s the same medium, but different compartments. Unless the guy left his kiddie porn in plain view (e.g., on desktop with an icon), somebody had to go and directly look for it (e.g., scan for jpegs).

    In many cases, people went to circuit city for either spyware removal or for installing an anti virus (It’s silly but that’s what people do with those things), they had a reasonable expectation that this is all that would be done.

    The problem is that the courts have no understanding of computers, and therefore the judge can’t really understand how this is not “plain view”, especially after CC probably hired some big shot lawyer to obfuscate things.

  57. UCLAJason says:

    @FreemanB:
    This case only applies to Pennsylvania. Other states may or may not follow this precedent.
    As for can a password protect you. The court seems to imply that in fact it can. The court looks at the circumstances of this case and determines that there was no expectation of privacy. The court though stresses that this is a matter of intent. A password would definitely be proof of an intent not to give up privacy to those sections. The court even states that the defendant in this case did not even change the names of the files. This seems to imply that changing the names of the files may be enough to establish intent. A password would seem to be doing even more than changing the names. Further, the court even sites United States v. Barth, 26 F. Supp. 2d 929. In Barth the court held a hard drive was turned over for a limited purpose and the expectation of privacy was not given up and the evidence of child porn was disallowed.
    @cde:
    I did only skim the case but where is your evidence that the law of bailments protects a bailee’s privacy? I think the right to privacy derives from other areas of the law here.

  58. rmosler says:

    @Buran: I think that there would be a problem in this case. The police still have the probable cause to search your trunk if there is someone banging around inside. This is a bad example. Though I did like the cocaine example. What if my wife’s underwear were made out of cocaine?

  59. FreemanB says:

    @cde:

    Computer trespassing laws vary by state, so I can’t speak to those. As for the DMCA, the only criminal offenses involve circumvention of copyright protection systems, which doesn’t apply in this case.

    Should a Geek Squad employee be nosing through files on a computer? Of course not. If they are and find evidence of a crime, should the police be able to use that evidence against the computer’s owner? Yes. That is what this decision said. No matter how the evidence was originally obtained, the state did not violate any of the prohibitions against unreasonable search and seizure. To use an extreme example, what if your neighbor installed a hidden camera in your bedroom and recorded you killing your wife. Yes, your neighbor would have some explaining to do, but the court would still allow the recording as evidence against you.

  60. UCLAJason says:

    @FreemanB:
    The case never says if someone puts a camera in your room without asking that the evidence could be used in court. The essential holding is when someone knowingly gives up their right to privacy any evidence found can be used by the court. I don’t think anyone would say that you give up your privacy in your home when someone puts a camera there without your permission.

  61. Curiosity says:

    @UCLAJason:

    I meant, what the court insinuated as to abandonment not privacy – that you give up control and that creates a legal construct of abandonment which PA law states is an abandonment of any objection to a search by the police.

    As I said, It seems that you are not actually “abandoning” your property when you hand it off for safekeeping (a balement). Of course, this is PA legal fiction and would not impact the privacy issue when it comes to whom you hand it off if they are expected to see it.

    It does affect the right of the police however to search your things irrespective of of whether something illicit was found – you should note the change of use of abandonment from police centered to the computer tech.

  62. Daniel-Bham says:

    Question:

    What is the burden of proof on the employee?

    Let’s assume that a Best Buy employee reads this news release and, wanting to either get back at someone they don’t like *or* wanting to gain some publicity, they place illegal files onto a customer’s PC and then “report” them to the police.

    What is the burden of proof to say that those files actually belonged to the owner of the PC?

  63. UCLAJason says:

    @Daniel-Bham:
    It is not so much the burden of proof for the employee but the prosecutor. To be convicted of a crime it must usually be proven beyond a reasonable doubt. So a prosecutor would have to prove beyond a reasonable doubt that you placed those images on the computer and not the employee.
    Employee beware – if the employee tries to frame someone the employee may be guilty of certain crimes.

  64. cde says:

    @UCLAJason: The difference is that in the law of bailment, the new caretaker must take reasonable actions that the true owner would take. The Police would need a warrant to search the drive. In this situation, the caretaker, (CC/FireDog Tech) gave the police permission to search the drive connected with the kiddy porn, inturn with their right to open the files.

    What makes it different then abandonment is the caretaker’s permission. In abandonment, the cops would not need a warrant, as the property is no longer owned (in privacy/legal terms) so no one has an interest of privacy.

    If I put my computer in the middle of the mall and allow anyone to use it without needing explicit permission, that’s abandonment. If I put it up in the mall and require you to sign a paper or tell me that you want to use it, that’s bailment.

    Allowing your friend to use your car, bailment, allowing a cop (on official duty), abandonment, when it comes to privacy.

  65. failurate says:

    By not reporting it, they put themselves at risk of being guilty of possession, since they have knowledge of it’s existence and control of the device containing it.

  66. failurate says:

    And, if they don’t say anything, then turn the device back over to the owner, that seems to me like it would be distribution.

  67. cde says:

    @FreemanB: Pictures/Movies encrypted with a password would undoubtedly fall under DMCA.

    And about the camera idea, the difference would be if the guy/killer or the wife had allowed the neighbor to install the camera in the bedroom, then it would be allowed as evidence. It made no ruling to a private citizens illegal action resulting in the discovery of a crime. If someone stole your computer and found the porn, would that be allowable? It has yet to be determined at a state supreme or federal level to my knowledge.

    There was a post on Consumerist about just that. A thief broke into someone’s home and stole a camera. On looking at the pictures on the camera, he found kiddy porn (so the owner of the camera not only possessed kiddy porn, but made it). He mailed the camera to the cops with the owner’s address.

  68. FreemanB says:

    @UCLAJason:
    In the Barth case, the technician found evidence of child pornography. The police were then notified, and they did not obtain a warrant for their search. The technician’s finding of the evidence was inconsequential. It was the subsequent, warrantless search by police that got the evidence thrown out.

    And the point I was making with the camera is that evidence obtained by a normal citizen(Someone not acting as an agent of the state) doesn’t have to meet the requirements of a reasonable search. No matter how you feel about the way the evidence was first discovered(Searching your computer while it was in for repair, etc), that is not a factor in whether it is admissible in court.

  69. cde says:

    @failurate: Yes. Child porn is special on that case. They must report it or they can be charged with it.
    @failurate: I don’t believe they would be liable of distribution by returning an item to the owner. Just for not reporting it.

  70. UCLAJason says:

    @cde: I have to agree with FREEMANB on the DMCA point. There is nothing in the DMCA that would protect your password protection of material that you do not have a copyright on. I do not see any support for your position in the act.

    Also FREEMANB I misunderstood what you are talking about and agree with you that a private citizen can do investigations etc because they are not constrained by the 4th amendment. The issue in these cases is whether another can consent to a police search for you.

  71. UCLAJason says:

    @cde:
    Also read FREEMANB’s response to me. This case revolves around whether the technician is allowed to turn over the evidence for you.
    If the technician knows of evidence, gives the evidence to the police, and then the police get a warrant there is no violation of the 4th amendment it seems.

  72. cde says:

    @UCLAJason: DMCA doesn’t just cover your copyrights, but any material that is copyrighted. Just cause he can’t sue (he could) doesn’t mean the person cracking the encryption would not be breaking the law.

  73. cde says:

    @UCLAJason: I agree with that. The tech is the caretaker, but has certain duties according to the law. It is still the owner’s property, so the caretaker can’t simple give the computer to the police. He can only report illegal things.

  74. FreemanB says:

    For some reason, this reminds me of legal discussions with my wife. Did I mention she’s a law student? I’m learning to do my own legal research, read decisions, cite cases, all just so I have a chance of winning an argument occasionally. Okay, that hasn’t happened yet, but someday…

  75. Buran says:

    @rmosler: That would be probable cause, yes. But they can’t just go rooting around in your trunk if they don’t hear sounds of distress or otherwise a really good reason to think something is fishy. (“we thought we’d have a look because soandso is a gangster” isn’t probable cause).

  76. UCLAJason says:

    @cde:
    I really don’t mean to be derogatory but you should take at least a cursory look at the law.
    The prerequisite of ownership of the copyright is established by Chamberlain Group, Inc. v Skylink Techs., Inc. (2004, CA FC) 381 F3d 1178.

  77. Catperson says:

    I can’t understand why this blog is so obsessed with protecting a consumer’s right to have porn on his or her computer. It’s hard for me to have sympathy for the porn hounds of the world, especially when the case in question involves a kiddie porn hound.

  78. UCLAJason says:

    @Catperson: I think we are less interested in the crime and more interested in protecting people from unreasonable search and seizure. Though if you look at our posts we support the fact that a private citizen can turn over evidence of this behavior to the police. The police can then get a warrant do a proper search and arrest the scum bag.

  79. Curiosity says:

    @cde:

    Actually that gets to why I was a bit disturbed – That the PA law equates that the computer left in the hands of a bailee as having no expectation of privacy – irrespective of if the computer tech found anything illicit on the drive.

    While I understand that the illict material makes this case a great deal easier – assume the following If the police had reason to suspect that you had something on that drive that was illicit (but none was found by the computer tech, could they search the drive if left with the computer tech?

    The language (as I read it, with the added language, implies that it could be without a warrant etc.): that under current Fourth Amendment jurisprudence, a defendant cannot object to a search unless he establishes a legitimate expectation of privacy “in the area searched or effects seized” and that such interest also must be sanctioned by society as reasonable and justifiable. It continued that a “legitimate expectation of privacy is absent where an owner or possessor meaningfully abdicates his control, ownership, or possessory interest” in his personal property.

    Thus it ignores bailment as a means of control to assert that there is no control and there is no legitimate expectation of privacy.

    In otherwords balement is not a form of control.

  80. Rusted says:

    Any owner with at least one brain cell should know to never keep anything that’s “interesting” on a computer.

  81. JollyJumjuck says:

    I’d like to know why my comment that I posted over 2 hours ago hasn’t shown up here. It did not contain any vulgarity, racism, sexism, or anything else that people might find objectionable. All I did was provide a link to a satirical cartoon site. I thought this was an open forum, not something to be arbitrarily censored by the admins/moderators?

  82. ancientsociety says:

    @Catperson: Okay, great, good for you.

    Did you have anything intelligent to add to the conversation?

  83. UCLAJason says:

    @Curiosity:
    Your case is much more interesting. The court probably did not think ahead to when that sort of thing happens. Do you think this could be applied to other things. I lend you my car. The police want to search it without a warrant. Can you allow the police to search my car without a warrant? Do I expect privacy with regard to my possessions in my car when I loan it to you?

  84. Curiosity says:

    @Catperson:

    A consumer’s right to keep porn unmolested could be equated to your right to keep your super secret steamy diary from being read.

    And of course it hard to have sympathy for kiddie porn people, however if you note very few people are claiming kiddie porn is good or he should not have been convicted, but the means of convicting him was potentially a bit amiss, which may in turn affect innocent people’s rights.

  85. Curiosity says:

    @UCLAJason:

    As I read the opinion the police would consider this an abandonment and then be able to search it b/c you have no expectation of privacy since you abandoned this when you reliquished control to someone else.

    Much like client attorney priv. being broken.

    (BTW, I really hope I am wrong and am misreading what I have read.)

  86. mikedt says:

    This does seem to be a new trend though where government gets companies to do what they aren’t legally allowed to do. Can’t tap phones, get the phone company to do it for you. Can’t collect and collate data on citizen’s financial transactions, get the banks and credit agencies to do it for you. Can’t build all encompassing databases, outsource it. Want to look in people’s windows, tell the post office and fire department to look for stuff.

    The activities are the same and the outcomes are the same. It’s just government can hold their hands up and go “we’re clean, we didn’t touch it.”

  87. UCLAJason says:

    @mikedt:
    The situation may be different here if there was proof that the government asked computer technicians to look for this stuff. The computer technician it seems took it upon himself to look for this.

  88. Kryndis says:

    I’ve got absolutely no issue with the ruling and, in fact, completely agree with it.

    On the other hand, Code X? Man, am I ever tired of serious technological legal issues being decided by people who obviously don’t have a clue what they’re talking about. I don’t think it’s out of line to require judges to complete some sort of training and/or demonstrate at least basic knowledge in technical cases over which they are presiding.

  89. Curiosity says:

    @Kryndis:

    That is why the experts are there – to educate.

  90. Curiosity says:

    @UCLAJason:
    Also note this from the case –
    “Finally, police had the lawful right to access the videos because, as analyzed extensively above, Appellant had abandoned any reasonable expectation of privacy in them.”

  91. Catperson says:

    @Curiosity: First of all, “keep porn unmolested” is funny turn of phrase. Second, it’s not at all like me having a right to keep a super secret steamy diary, at least not the cases that are being reported here. These people are keeping their porn stored on a device that they are turning over to someone else. If you’re dumb enough to do that without taking precautions, then you can assume that the technician will find your porn. But my larger point is why this is such a hot consumer issue on this blog when there are plenty of other ways consumers are getting screwed over that don’t get any coverage. I’m guessing the reason is that this blog isn’t really about the consumer, but rather, about the people who run it trying to get more money by running the most salacious stories they can find.

  92. thenewguy says:

    I have been a computer technician for over 10 years and I can honestly say I’m guilty of taking a peak at someone’s my documents folder….for me its just curiosity. But as far as fixing someone’s computer there is no reason someone NEEDS to look there for troubleshooting. About 99% of viruses and spyware infect the root drive C:/, temp folders, system32 folder and the registry. Unless there is a folder sitting on the desktop called kittyp0rn no one should be snooping around your personal documents for any reason. I have seen a many strange things on some of my client’s computers and I never thought twice about reporting them. It’s none of my business what they have on their computer and I don’t know how it got there. Like someone said earlier it’s easy to manipulate a computer files (i.e. Blackmail). It’s even easy to fabricate an email or Instant Messenger history. I could have a perfectly normal conversation with someone at work and save the IM session logs. Edit it and turn it around to look like sexual harassment and get them fired. The best way to catch these sick bastards with the kitty stuff is to catch them in action like they do on that TV show. I don’t think snooping around on someone’s computer is valid evidence; it’s an invasion of privacy in my book

  93. UCLAJason says:

    @Curiosity: Obviously we will have to see if other states follow course with the same reasoning. It is pretty extraordinary.

  94. Evan394 says:

    SOme of you are extrapolating a little:

    The ruling said that if you knowingly grant to a third party potential access to your computer contents, you have knowingly exposed said contents to the public.

    The comments about contents of your house and wife’s underwear drawer is nonsense. You haven’t granted the service technician access to you whole house, just to the area that he’s working in. If you’re taking pics of naked children, and I see them, I’m turning your ass in. If I’m in your house working on your water heater in the basement, but you’re growing weed in your attic, I would only see it if I’m in the attic, which would be a violation of the service contract you and I had, as well as your privacy. If you’re taking pics of naked children, and I see them while I’m in the basement, I’m turning your ass in… after I kick your ass a little, of course.

  95. cde says:

    @Curiosity: The thing is, was that question raised in court?

    @UCLAJason: You shouldn’t be able to.

    @Curiosity: That’s a flawed argument, because if someone gives their friend their car to use for a day, that does not mean you allow anyone to go into it.

  96. RvLeshrac says:

    @kepler11:

    Like hell is it the PC tech’s job to rifle through the HDD. The tech’s job is to get in, fix precisely what the problem is, and get the hell out. If you’re asking to have the drive *backed up*, this obviously does not apply. If you want the spyware or viruses removed, the tech has no need to sit there staring at the scan.

    @Kryndis:

    Bullshit. Bullshit. Bullshit.
    Where does this end?

    You can feel free to give away all of *your* rights, but you can keep your filthy far-right/far-left hands off of mine.

  97. scampy says:

    @num1skeptic:

    How about BUYING your music and movies then instead of being a cheap ass pirate. You deserve to rot in hell just as much as a child porn watcher you thief!!

  98. Curiosity says:

    @cde:
    Yes it is a flawed argument, but it seems to me what they say in the case. Do me a favor and read it closely and tell me what you think?

  99. Curiosity says:

    @Catperson:

    Of course it is a funny turn of phrase but then I have to find humor somewhere.

    Next it is like you turning your diary over to the tech and him reading it. It is a subjective call if you label it “super secret steamy diary” whether you expect him to read it when doing maintanace work (irrespective of your stupidity of allowing the opportunity to exist you still may have a right ).

    Lastly you have an excellent point that there are many consumer issues to address which seem not to get convered properly. What are your pet peeves?

  100. clocker says:

    As interesting-and pertinent- as all the legal debate is, I have a comment about the tech side of the issue.
    (Just to preface…I was a tech in a small independent shop for three years).

    I installed dozens, if not hundreds, of CD/DVD players and never ONCE combed through the PC’s hard drive searching for files to play.
    -Install device.
    -Pop in known good DVD (in my case, “Aliens”) and ensure that it works.
    -Done.

    Interesting that the BB tech has the time to peruse the hard drive hoping to find a suitable file to guarantee his work.

    BTW, if you want to find pr0n on someone’s PC, all you have to do is search for “new folder” in My Docs.
    It’s guaranteed.

  101. eelmonger says:

    If I’m understanding this right, the reason they can turn you in is because you give up expectations of privacy. Couldn’t this be circumvented by just saying “While your fixing my computer, could you not look in folder X, it has sensitive information that I want to remain private?” Of course a GS or FD employee would then immediately open that folder, but since you requested it to remain private (and they presumably agreed) they shouldn’t be able to use anything in it against your, right? I guess they could call the police and let them get a warrant because of your “suspicious” activities, but I doubt the police will be happy if it just turns out to be last year’s tax returns.

  102. macshasta says:

    I have been repairing computers since the BBS days and am appalled at this decision. Plumbers, electricians and other tradesmen do not have the same access to private information. While they can be put into an uncomfortable position when confronted with pop plants growing along side the water heater, this is not the case with computer repairs. Whatever I find on a customer’s computer stays private – very similar to attorney/client and doctor/patient. Many of my customers are in very competitive fields and their private information needs to remain private. Furthermore, a hard drive crash or circuit board failure is not a “planned” repair and the individual has no chance of protecting what is or is not on their computer at the instant of failure…

  103. Blackneto says:

    @macshasta: I’ve been repairing them as long as you have.
    and i agree that private information remains private when I’m dealing with customer data.
    But the decision comes as no surprise and doesn’t bother me at all.

    In the past 20+ years multiple employers have instructed me, as i now instruct my employees that if child pornography is found in the course of servicing the computer to stop immediately and call the police.

    This direction came not from sense of moral obligation but from legal counsel.

    There is a level of trust and privacy that must be maintained between the repair person and the client.
    If i were to find and take any data from a customers computer and use it for personal gain (selling trade secrets, spanking to nekkid pictures of his wife, blackmail) then I would be legally liable and and subject to prosecution or civil suit.
    But since the law says that criminal activity such as possession of child porn must be reported, I’m under no legal or moral obligation to keep things quiet out of concern for the privacy of the customer.

    That being said, most repairs do not even warrant searching a hard drive for anything.
    the only think in my experience that you might see a filename that would cause concern would be a virus scan or a data transfer.
    And though I’ve never done it with a new drive, I’ve verified a CD burner works by searching for files and burning them to the CD.
    When testing an existing burner for operation, or even to test tape backups, i usually just search for *.txt files and use those since they are abundant on any system.

    But the decision i believe is accurate.

  104. ceriphim says:

    It’s funny how people are stoked when the child pornographer is caught but pissed when they find out someone’s copying their own porn…

  105. RvLeshrac says:

    @macshasta:

    Roger that.

    If your porn isn’t covered by a ‘reasonable expectation of privacy,’ what’s next? Can you suddenly not sue someone for taking your company’s trade secrets because you checked your PC in for repair?

    And with regard to legal documents, is attorney/client privilege suddenly thrown out the window because a lawyer had to have his PC repaired?

  106. RvLeshrac says:

    @Blackneto:

    And when you take my strangely named “XXX Underage 14yr old XXX.AVI” and turn it in, and it turns out to just be a video of my grandmother’s birthday party, I get to sue your ass off for all of the legal fees, damage to my reputation, and psychological trauma of having people think I’m a kiddie porn peddler.

    Sounds like a good idea, I need to start a campaign of entrapping you tools who insist on sticking your noses where it doesn’t belong.

    If there’s a human life involved, if you find something that clearly implicates the owner in a kidnapping, for example, there may be call for extraordinary action. But short of extraordinarily off-the-wall situations like that, you are not a super-spy, and you need to keep your little weasel mouth shut.

  107. Blackneto says:

    @RvLeshrac:
    Go right ahead and sue.
    I’d rather lose the business than break the law by not reporting obvious child pornography.

    In civil court you would have to prove that i acted maliciously to defame you.
    You would also have to prove that I was out of bounds in the way i found the file because it wouldn’t just be the file i turn in. Procedure is to leave the computer alone and call the cops when something like this is found. Then they decide what to do from there according to their procedure’s.
    And normally this includes me giving a sworn statement for the criminal case that is to follow stating why i had the computer, what procedure was i performing and how i came across that file.
    My attorney would have this statement admitted in the civil suit as evidence for my defense.

    On the flip side, say i don’t report it and a weasel like you gets busted later for diddling little kids. They find kiddy porn on your computer and you say i put it there when you brought your computer in for service.
    Now my business is shut down while it’s investigated and my customers are inconvieniced or outraged and my reputation is on the line for breaking the law.

    I think I’ll just stick to my standards.

  108. trollkiller says:

    I just finished reading the ruling [www.superior.court.state.pa.us]
    While I agree with the court they just went way around the horn to get there.

    The guy has no expectation of privacy on the videos because burning a video off of the hard drive is a reasonable way to test the burner. If the tech had opened a word document instead, Mr. Pervert may have a case against Circuit City and/or the employee but not the police.

    Based on what the tech showed and told the police, they had probable cause to seize the computer based on well established rulings. A police officer can seize property if there is a reasonable belief that a crime has been committed and the evidence can be destroyed or hidden before a warrant can be issued.

  109. ppiddyp says:

    Just to reiterate what others have mentioned: does this mean they can just take credit card numbers from your computer and post them on the web?

  110. RvLeshrac says:

    @Blackneto:

    And if the tech ‘turns in’ someone after planting a file, how exactly do you propose the innocent individual defends themselves? It is perfectly easy to turn the date back on the machine to generate a false time/date-stamp.

    How do you propose that an innocent person who is the victim of a botnet of some sort defend themselves? Hiring a security consultant can take far more money than most people (or government-provided indigent services) have.

    What if that person is the victim of a third-party who planted the images for just such an opportunity? All you need to do now is plant a few bad images and then cause a problem with the machine (many, many ways to cause a machine to stop booting, most people will take it to a repair shop rather than do a simple restore themselves, or perhaps they need the data on the machine).

    Haven’t exactly hit the article, but if this is the one I remember, the guy threw in a guilty plea. Unfortunately, we’ll have to wait until someone innocent is tossed in jail and has their life utterly and completely ruined by a sex-offender registry before people like you give a damn.

  111. Blackneto says:

    @RvLeshrac: I think you are missing the point.
    I don’t care how the heck the files get on their computer.
    It’s not my responsibility to decide.
    I’m not going to plant a file. None of my colleagues that I’ve worked with over the years is going to. The assertion that some random tech is going to waste their time hunting up nasty pictures of little kids just to frame somebody is really a stretch.
    What is my responsibility, and my duty under law, is to report to the authorities if i find CP on a computer and let them handle it.
    Truthfully, I don’t care what happens to the owner of the computer.
    It won’t be me that is wrongfully accusing them if the charges brought by the authorities are false.
    In a situation like this, My company, my reputation, my children’s right to have their father around is more important than someone else.
    And all the claims about somebody possibly planting evidence are ridiculous.
    The forensics that the folks who investigate these things with can reasonably determine the source of them material in question.
    As I indicated before I’d rather lose my business due to a decision to do what’s right than try to protect it out of fear.

  112. Valhawk says:

    This is why I’m so glad my laptop has an easily removable hard drive.

    Also I sense a Lawsuit against the techs brewing.

  113. RvLeshrac says:

    @Valhawk:

    One can only hope…

    Of course, with people like Blackneto around, we’re just going to sink further and further into a fascist state.

    Maybe McCarthy was right, and it was just his methods that were horrible. Maybe we’re turning into a Soviet country, where everyone is expected to report their neighbors for any offense, real or imagined, to the state.

    Maybe we’ll wind up with new programs in place to encourage it, just like Soviet Russia! Turn in your neighbor, you get to keep their house!