Court Says Password Protection Doesn't Restore An Abandoned Phone's Privacy Expectations

from the 1.-throw-in-ditch-2.-go-to-Mexico-3.-move-to-suppress? dept

In a decision reached recently by a Florida federal court, a person has no expectation of privacy in a phone that was thrown away. [h/t Orin Kerr] In this case, the defendant was sought in connection with a missing child investigation. He was questioned by police and released. A few days later (when he was supposed to be meeting detectives at his house), the defendant (allegedly) went for a walk in the rain and got lost. He discovered his phone was wet and, according to his testimony, threw the phone in a ditch because he believed the wet phone was completely useless.

The defendant's phone was recovered by someone else. The police traced the phone back to the phone's (temporary) new owner. The phone was then subjected to a warrantless search. Police were hoping to find information about the missing child as phone records obtained earlier showed the defendant's phone had been in the area. (They also exposed inconsistencies in the defendant's assertions about where he had and hadn't been.)

Instead, the police found something else: child porn. The defendant moved to have the evidence suppressed, arguing that while he may have abandoned the phone, he did not abandon his privacy interest in the phone's [contents]. From the decision [PDF]:

Although the abandonment doctrine has long been in place, Defendant argues that this case does not align with current precedent. This is because, according to him, the item discarded was a passcode-locked cell phone. To be clear, Defendant concedes that he ditched the physical cell phone on May 31. But he argues that he still had a reasonable expectation of privacy in the phone’s contents because the phone was password-protected and because he would not have discarded it but for his belief that the phone was broken. (Doc. 56 at 13). In other words, he asserts that even if the phone worked when he discarded it, the contents were not accessible without his passcode, and thus he maintains standing to challenge the search of his phone’s contents.

The court calls this argument "novel," and it sort of is. As the decision states, abandoned items -- including containers -- lose their privacy interest immediately. But not every court has seen it this way when it comes to password-protected cellphones. The court notes the Supreme Court's Riley decision, which instituted a warrant requirement for cellphone searches because the vast amount of information stored in today's cellphones makes them more analogous to a person's house than the contents of a person's pockets (as the government argued).

But the argument isn't completely novel, as the Florida state appeals court arrived at the opposite conclusion late last year.

While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession.

The court here cites the state court decision, but ultimately abandons it. (It has no precedential value in a federal court anyway, seeing as the state court decision didn't rely on Florida state law, but rather a Supreme Court decision.) As it notes, that decision was one of several related to abandoned cellphones, but it was the only one to arrive at this expectation of privacy conclusion.

Defendant urges this Court to adopt the logic of K.C. and the dissenting opinions in Brown and Samalia. The Court respectfully declines to do so. To start, K.C. is not binding on this Court. And for the reasons previously stated, the Court does not agree that the reasoning in Riley for why cell phones should not be subjected to a warrantless search incident to arrest applies to abandoned cell phones with or without a passcode. Recall that the Supreme Court was concerned about the capacity to store private information on a cell phone that far exceeds that of other physical objects. But abandonment is about intent, and when a person abandons a physical object, he maintains no right of privacy in the contents. This is fundamentally different from a search incident to arrest, and the decision in K.C. does nothing to persuade this Court otherwise. Also telling, the Supreme Court in Riley did not require law enforcement officers to obtain a warrant to search every phone that falls into their possession.

The court goes on to note that the phone being thrown in a ditch simply for being wet isn't a very credible assertion. First, the defendant made no effort to retrieve his phone, not even after he knew who had recovered it and that it was in working condition. Other testimony indicated several calls went unanswered before the phone was literally ditched by the defendant because it was too wet to use. And the court gives testimonial credit as to the phone's condition to the person who found the phone since he didn't know the defendant or have any details about the investigation. Then there's the defendant's apparent attempt to leave the country, which was uncovered by investigators.

In contrast to the state court ruling the federal court has no obligation to adopt, the defendant's phone wasn't merely left behind, but rather an affirmative effort made by the defendant to distance himself from his cellphone by throwing it into a ditch while "lost" in the rain (and apparently avoiding detectives coming to speak to him).

Chances are, this might have gone a little more the defendant's way if he hadn't tossed his phone out, immediately replaced it, and hightailed it towards Mexico. The court doesn't sound like it's making an across-the-board ruling on cellphone privacy, but rather responding to the circumstances of this particular case and the defendant's lack of credibility.


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  • identicon
    Anonymous Coward, 1 Jun 2017 @ 12:47pm

    He discovered his phone was wet and, according to his testimony, threw the phone in a ditch because he believed the wet phone was completely useless.

    Why did he make this statement? His case would have been infinitely stronger had he stated that he lost the phone ("accidentally"). Was there some unrelated reason he wanted to make it clear he threw it away?

    Alternatively, I guess he could just have had the worst legal representation ever.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 12:51pm

    If he had reported the phone stolen, would it still be subject to a search?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 1:31pm

      Re:

      The court is accepting the state's claim that the phone was abandoned. There is another case referenced that establishes that an expectation of privacy is lost when property is abandoned.

      The defendant's argument is that the phone had a passcode, so he expected privacy. He freely admits that he tossed a locked container of information with no intent to return for it.

      If he held that it was lost or stolen, he could claim an expectation of privacy. But if he gave the statement of tossing the phone prior to it being turned over to forensics, it seems reasonable to hold it was abandoned.

      reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 5 Jun 2017 @ 5:57am

        Re: Re:

        I think there's also room to argue that if he thought that the phone was kaput, i.e. that it was not *possible* to recover the data from it, then the act of abandoning the phone did not constitute an act of abandoning the data on the phone. (An analogy to non-digital form would be abandoning a wallet with cards which had gotten so wet that the ink had run and they had become unreadable.)

        That doesn't seem to have been raised in court, however, and I'm not sure there aren't valid reasons for the court to reject that line of reasoning in any case.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 12:53pm

    Bad cases make bad precedent

    As Techdirt notes, this defendant took several steps that set him up for failure in court. That is unfortunate, since it would be better for the privacy of the general populace if this case had gone against the government. In particular, since this ruling approves of warrantless search of abandoned property, it will give officers cover in future warrantless searches to claim that they thought an unattended item was abandoned (rather than lost) and that, per the Good Faith Exception, since they thought they were searching an abandoned item and abandoned items have no protection, that the search was legitimate and should be sustained, barring overwhelming evidence that their belief in abandonment is not credible.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 1:19pm

      Re: Bad cases make bad precedent

      "Chances are, this might have gone a little more the defendant's way if he hadn't tossed his phone out, immediately replaced it, and hightailed it towards Mexico. The court doesn't sound like it's making an across-the-board ruling on cellphone privacy, but rather responding to the circumstances of this particular case and the defendant's lack of credibility."

      nuff said...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 1:50pm

      Re: Bad cases make bad precedent

      This case already uses a precedent that warrentless searches of abandoned property is allowed. United States v Sparks. It also references more cases to explain abandonment. You could use this case against a warrentless search because of the need to use a common sense approach to determine abandonment.

      This would be a bad case if he had left the phone at home and the cops took it. But he states he tossed the phone and my common sense says he abandoned it.

      reply to this | link to this | view in chronology ]

  • identicon
    YetAnotherOneGuy, 1 Jun 2017 @ 1:01pm

    What about a stolen phone??

    If the phone is "stolen" would that be considered abandoned as well?

    If so, now we have the cops asking criminals to steal the phone, then they can open it up sans warrant.

    Seems like business is booming in the "Police hiring criminals to bypass the Constitution" business.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 1:13pm

      Re: What about a stolen phone??

      ...that's a bit of a stretch there Clyde, this is a one off because the guy was obviously trying to game the system.

      reply to this | link to this | view in chronology ]

      • identicon
        YetAnotherOneGuy, 1 Jun 2017 @ 1:23pm

        Re: Re: What about a stolen phone??

        Is it?

        Isn't the government using data collected by third parties sans warrant already?

        Replace "criminals" with "Verizon" or "AT&T" - which in this case is synonymous.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 1:38pm

      Re: What about a stolen phone??

      Was the phone voluntarily 'stolen'?

      As long as you hold that you always maintained an interest in the phone, this ruling could be used to protect you.

      And even if the cops took your phone from you, the voluntary requirement would hold as well and you could maintain an expectation of privacy because you have an expectation of getting the phone back.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jun 2017 @ 2:41am

      Re: What about a stolen phone??

      Whilst the latter statement is completely true, your first statement is incorrect. Note; that does <i>not</i> mean that the police won't argue that a stolen phone can be considered abandoned.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 2 Jun 2017 @ 7:42am

      Re: What about a stolen phone??

      Stolen isn't Abandoned

      So this ruling may not apply in a case where a stolen phone was then hacked open by the police. There's still an expectation of privacy.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 1:33pm

    analog analogy

    I think if I threw away a locked safe, I don't think I'm allowed to retain any legal privacy interest in it's contents.

    reply to this | link to this | view in chronology ]

    • icon
      freedomfan (profile), 1 Jun 2017 @ 10:17pm

      Re: analog analogy

      An important distinction is that he thought that the information on the phone was inaccessible anyway. The analogy is more along the lines of: If the owner thought that the contents of the locked safe had caught fire and burned up, is he obligated to keep the safe indefinitely to maintain his expectation of privacy?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jun 2017 @ 9:50am

        Re: Re: analog analogy

        Alternatively, if we're in a junkyard in search of items to restore/recycle and come across a safe, are we obligated to leave it where it is rather than take it to refurbish and/or melt down for scrap metal? Should we be forced to remove that safe and store it in a clean dry place so that there's no chance of rust destroying the lock and therefore infringing your privacy? Good luck keeping the trash companies in business after this...

        Ulimately, is "reduce/reuse/recycle" even legal, or is it an invasion of privacy?

        reply to this | link to this | view in chronology ]

        • icon
          freedomfan (profile), 3 Jun 2017 @ 12:41am

          Re: Re: Re: analog analogy

          Except that no one is claiming any obligation to preserve people's abandoned objects or any data on them. If your thing is melting down locked objects from junkyards, knock yourself out. Similarly, re-using or recycling various media isn't in relevant to the discussion here, since the government isn't searching the items as part of any recycling process.

          The question is whether the government should treat any object that it can claim as "abandoned" as an opportunity for a fishing expedition. Keep two things in mind. First, the objects in question were locked and were understood (incorrectly in this case) to not have retrievable data on them. Second, this incentivizes government claims that something was abandoned whether or not they knew that it really was.

          reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 1 Jun 2017 @ 5:11pm

    Defendant needs to learn about a clever new invention: it's called a "rock".

    It's amazing what one of these "rock" things will do for your privacy when applied correctly.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 6:17pm

    So did they charge him for littering?

    reply to this | link to this | view in chronology ]

    • icon
      tom (profile), 2 Jun 2017 @ 5:30am

      Re:

      Better would be to charge him with improper disposal of electronic equipment into a public waterway. His own testimony states that he disposed of the phone because it didn't work. Should make for a fairly easy case. Where's the state version of the EPA when you need them?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2017 @ 8:08am

    Because when you throw something in a ditch you expect it to become public knowledge. Expecting it to remain private forever is clearly ludicrous.

    reply to this | link to this | view in chronology ]

  • icon
    freedomfan (profile), 2 Jun 2017 @ 10:01am

    Some folks (including the courts) seem to be taking a hard-line view against when it's reasonable to expect privacy in this case, often ignoring that the defendant "abandoned" his phone only after he thought that the phone was locked and then ruined because of water damage, which he assumed made data on it inaccessible and possibly gone. Obviously, his assumptions about technology were incorrect, but was he really wrong to expect that his data would remain private?

    In other words, if one thinks the media is effectively destroyed, doesn't that mean one can reasonably expect that no one can access the data on it? This isn't a trivial issue and people's ignorance and misconceptions about technology play an important role here. The fact that Techdirt readers are more technically aware than average doesn't mean that the law shouldn't make some allowance for the average person's technical sophistication, or lack thereof.

    Meanwhile, what data is recoverable from "abandoned" media changes with technology. Do you shred your paper documents? Is that enough? I am certain that software either exists or could be written that would take high resolution images of appropriately spread out shreddings and reassemble them into a document. So, when the cops troll through someone's trash without a warrant and use that software to recreate a document that is used against someone in court, are we going to be so quick to say that the lack of warrant was okay because the document was abandoned and there is no expectation of privacy for it?

    Similarly, there is technology that can recover or partially recover erased data from magnetic media, even when it has been overwritten. If you toss out an old laptop, even after long formatting its drive, is it okay for the court to rule that you had no expectation of privacy and that the government didn't need a warrant to fish for evidence on your old device?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jun 2017 @ 5:22pm

      Response to: freedomfan on Jun 2nd, 2017 @ 10:01am

      Technology and hand waving doesn't change the underlying pruncipal. You throw it away and it is no longer your, no longer in your control, and you cannot maintain a cone of privacy around it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jun 2017 @ 7:05pm

        Re: Response to: freedomfan on Jun 2nd, 2017 @ 10:01am

        The underlying principal is "when a person abandons a physical object".

        I do not think a cellphone is such an object.

        A truly bricked cellphone is merely a physical object.

        Any cellphone that powers up is very much unlike a safe: That cellphone's contents are not physical.

        In this case the actually expectation-of-privacy question is "when a person abandons a software object".

        Therefore I suggest that law enforcement departments ought not be searching through an abandoned cellphone (hard disk) without first convincing a court that it is permitted for this specific person's device.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Jun 2017 @ 7:45am

        Re: Response to: freedomfan on Jun 2nd, 2017 @ 10:01am

        Speaking of mobiles, how's using it to post from other IP addresses, My_Name_Here?

        Of course even after you purchase a movie or a music CD you seem to take offense when the consumer reviews it because fair use doesn't exist in your world, despite the object no longer being in the artist's control. Why is that? It's almost like your definition of physical ownership doesn't mean jack when held up to closer scrutiny.

        reply to this | link to this | view in chronology ]


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