Duh, Don't Leave A Thumb Drive With Child Porn Plugged Into A Shared Computer
from the plain-view dept
Obviously child pornography is a serious crime and needs to be stopped; that's not the issue that is in question here. As law professor Orin Kerr points, out, the concern here is whether or not looking through the contents of an inadvertently plugged in thumb drive constitutes an unreasonable search and seizure and a violation of our fourth amendment rights. In this case, United States v. Durdley, the district court ruled that leaving a thumb drive in a shared computer removed an expectation of privacy since no extraordinary means were necessary to access those files:
Durdley's files were exposed to anyone who sat down at the computer station who used the traditional means for opening and viewing files (such as Windows Explorer and the My Computer icon). Johnson encountered the files without employing any special means or intruding into any area which Durdley could reasonably expect to remain private once he left the drive attached to the common-use computer. The Court concludes, therefore, that Mr. Durdley had no more reasonable expectation of privacy in the contents of the thumb drive once he attached it to the common-use computer than the defendant in King did in his drive once he attached it to the airbase network.Kerr disagrees with the ruling, and equates leaving a thumb drive plugged into a shared computer to leaving luggage in a bus terminal:
I think the social norm is that when you see a private person's thumb drive on a shared-use computer, it's understood that you're invading that person's privacy if you start clicking around to see what the files are. It's kind of like someone leaving their luggage in the waiting room of a bus station. If the owner leaves the luggage behind for some reason, no one would see that as a waiver of privacy rights in the luggage or an invitation to unzip the luggage and look around.It's hard to see how opening someone else's luggage is remotely close to looking at files on a thumb drive. Whereas luggage has clear physical boundaries, once a thumb drive is part of a file system, those barriers no longer exist. After all, when a thumb drive is plugged into a PC, it appears as a drive under "My Computer" and looks very similar to the other drives attached to the computer. So, if we really want a real-world analogy, a more appropriate one would be an open suitcase in a public bus station. Sure, while it's kind of nosy to peek inside, things in plain view have long been understood to not be protected under the fourth amendment.
So, the moral of the story is, if you have files you don't want people looking at, it's best to not leave your thumb drives plugged into shared computers. Even better, don't have illegal files in the first place.