Apparent Authority in Computer Searches: Sidestepping the Fourth Amendment
Authors: John-Robert Skrabanek

Date: 2008
Publication: Kentucky Law Journal, Volume 97, Number 4, 2008-2009
Page(s): 721
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Abstract or Summary:
In an era in which information storage is increasingly digitized, the computer password is king. As we undergo a massive transition away from paper records, more than anything else it is the password that will protect our most private files. This statement holds true for all types of data, from harmless personal digital photos to important state security documents. However, in contrast to the "brick and mortar" world, passwords in the digital context do not manifest themselves in tangible ways. For example, unlike a visible combination lock on a suitcase, frequently police may never know if a computer is password protected unless they make the effort to search for such protection. Should the legal standards that govern searches in this context be any different from those in a non-computer context? For a narrow subset of third-party consent searches, the answer is yes. Currently the standards that control third-party consent searches in the area of digital storage are not adequate to protect the individual against unnecessary governmental intrusion.

This note examines the search and seizure doctrine of “apparent authority” as applied to searches of computer hard drives. Part I introduces the background and history of apparent authority in the “brick and mortar” world. Part II examines how the doctrine has narrowed over time to suit items that society normally considers especially private. Part III scrutinizes the current jurisprudence of apparent authority in the computer context, noting that authorities have frequently ignored or warped the proper inquiry which should be made in various situations. Part III also proposes that when searching hard drives, additional inquiries must be made by law enforcement officials before courts should allow these searches to pass constitutional scrutiny. Finally, Part IV offers other special considerations and issues regarding apparent authority in the context of computer searches.

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