The rise of computer technology has created new challenges for courts and lawyers concerning the scope of privacy protection afforded by the Fourth Amendment. When the Founding Fathers wrote that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” they had no idea that the future would enable people to carry their “papers and effects” with them everywhere they went. Yet “flash” or “thumbdrive” technology allows them to do just that. A recent Federal case out of Florida provides an example of the difficulties that new technologies present for court attempting to apply constitutional protections written well over 200 years ago.
In United States v. Durdley, the government wanted to use evidence obtained from a flash drive that Mr. Durdley had accidentally left in a computer at his place of work. The flash drive had some work-related documents, but it also had evidence that the government used to convict him of a crime. This evidence was found when a co-worker sat down at Durdley’s computer terminal and began searching through the non-work-related files. The co-worker alerted the authorities, who then used the evidence to convict Durdley of the crimes.
Durdley argued that he had an expectation of privacy in the contents of the thumb drive. He never loaded the incriminating evidence onto his work computer and never made it available for public viewing. The co-worker realized that Durdley had left the thumb drive behind and began searching through it, then alerted police. The court found that by leaving his thumb drive in the computer, Durdley forfeited his Fourth Amendment rights.
This is yet another example of a case in which the government, criminal defendants, and courts are struggling to figure out how to apply constitutional protections drafted in the 18th century to the digital age.