Laptop Spying and the Fourth Amendment

by on February 25, 2010 · 34 comments

Jim Harper and I have been having one of our periodic tussles over the Lower Merion school laptop spying case.  Jim thinks the search in this case may pass Fouth Amendment muster; I disagree.

This is especially tricky because the facts are still very much unclear, but I’m going to follow Orin Kerr in assuming that the facts are roughly as follows. (I also, incidentally, follow Kerr in his conclusions: The statutory claims are mostly spurious; the Fourth Amendment claim is legitimate.)  Harriton High School issues its students personal laptops, which are required for class, and normally are also taken home by the students.  Student Blake Robbins, however, had apparently been issued a temporary “loaner” laptop while his normal one was in for repairs.  According to school rules, this laptop was supposed to remain on campus because he had not paid an insurance fee for it, but he took it home with him anyway. Exactly what happened next is not entirely clear, but at some point someone at the school appears to have registered it as missing on the school’s asset management and security system. The system works as follows. Each laptop periodically checks in with the school server whenever it is online—it sends a “heartbeat”—registering its identity, the IP address from which it’s connected, and some basic system data. It also, among other things, checks whether it has been reported missing or stolen.  If it has, depending on the settings specified, it activates a security protocol which causes it to check in more frequently and may also involve taking a series of still images with its built-in webcam and submitting them back to the server for review. One of those images, presumably because it showed something the school’s techs thought might be drugs, was subsequently passed along to a school administrator.  Again, any of this could be wrong, but assume these facts for now.

Our baseline is that private homes enjoy the very highest level of Fourth Amendment protection, and that whenever government agents engage in non-consensual monitoring that reveals any information about activity in the interior of the home, that’s a violation of the right against unreasonable search.There are some forms of public search that may be deemed reasonable without a court order, such as the so-called Terry stop, but “searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances” (Karo v. United States). Obviously, an ordinary search for stolen property cannot be “exigent.” Karo is actually helpful to linger on for a moment. There, a can of ether fitted with a covert tracking beeper had been sold to suspects who were involved in cocaine processing:

This case thus presents the question whether the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. Contrary to the submission of the United States, we think that it does. At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. Our cases have not deviated from this basic Fourth Amendment principle. [...] In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house.

Similarly in Kyllo v. United States: “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” So there’s an incredibly strong presumption to overcome.

Now, to be sure, we can imagine fact patterns where we would not want to count the monitoring as a search: If someone steals a wireless surveillance camera, we don’t want to say that somehow the owner conducts a “search” when, without his knowledge or consent, and without his taking any action, the camera is placed inside a home. But it’s important to remember the way the software works here. The laptop issues a “heartbeat” and, in the process, reveals the IP address from which it is connecting.  In other words, it has already announced that it is not on school grounds. From that information alone, it can often be determined whether the laptop is in a public or residential location, and typically that information can also be used in conjunction with a subpoena to determine whose network the laptop was checking in from.  So the activation of the camera here occurs (1) after the laptop has registered itself as being off public school grounds and (2) after it has already provided information that would typically be adequate to learn the location of the laptop, had it actually been stolen.

Now, Jim doesn’t say a whole lot about why he thinks the presumptive unreasonableness of warrantless home searches is overcome here; just that he thinks it is:

[If] the laptop is AWOL from school—presumptively stolen—I don’t see that it would be unreasonable to use the security system to discover its location, and the camera to capture images of who is using it.

The problem is that the relevant case law is full of some pretty strong statements to the effect that any such search is unreasonable without a warrant, even when there’s much less intimate disclosure than a webcam makes possible.  In a context where these laptops are routinely taken home by minor students—even if this particular one should not have been—and where there’s a registration of the IP address in advance of the camera activation, it seems fair to expect the school to understand that activation of the camera carries significant risk of capturing images from the home. In Karo, again, the police did not know in advance that the can of ether would necessarily end up in a private home—but when their monitoring revealed information from the home, it nevertheless violated the Fourth Amendment. The result might be different in a case where the school had strong reason to believe that the webcam was on school property in another public place, but that’s not the case here.

Now, in the comments and in our e-mail exchanges, Jim invokes the “plain view” doctine in a way that I think is problematically circular.  The idea here is that what can be seen by ordinary visual inspection—either because visible from outside the house through a window, or because apparent to a police officer otherwise lawfully present—doesn’t get Fourth Amendment protection.  So Jim is right that if the activation of the webcam for the purpose of protecting their property against theft were lawful, then the ancillary information thereby revealed would be admissible in court. But that doesn’t mean that the risk of exposure of such ancillary information is irrelevant to the reasonableness analysis of the initial search. That is, if a lawful search happens to uncover intimate information unrelated to the purpose of the initial search, it’s certainly fair game. But the risk of revealing protected information is highly relevant to the antecedent question of whether the search is reasonable.  In Illinois v. Caballes, Justice Stevens distinguishes a (lawful) use of a narcotics dog from the thermal imaging surveillance at issue in Kyllo:

Critical to that decision was the fact that the device was capable of detecting lawful activity–in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

In other words, a monitoring method that reveals only the presence or absence of contraband—perhaps even in the home—might not count as a Fourth Amendment search, because possession of contraband (or stolen property) is not a fact in which anybody has a reasonable expectation of privacy. But that exception applies only to such highly limited and targeted searches—it cannot be invoked when there is a risk that information in which there is a reasonable expectation of privacy might be revealed. Mere location of the laptop would be covered by the Caballes exception; the use of the webcam clearly falls outside its bounds.

Also relevant here is Arizona v. Hicks. Police lawfully entered an apartment to investigate a bullet which had been fired through the floor of the apartment above. While there, one officer lifted up a record turntable and recorded a serial number, which he later used to establish that the turntable had been stolen. The plain view doctrine, Justice Scalia held, was inapplicable, because the serial number was only visible after the officer lifted the turntable to expose it. Though their presence in the apartment was lawful, Scalia explained, the decision to lift the turntable could only be sustained on the basis of a probable cause belief that it would disclose evidence of a crime—and this is the case, note, even when the “search” here revealed nothing more intimate than the serial number on what proved to be stolen property!

With that in mind, let’s return to the webcam case. We know that in previous cases where they’ve activated this tracking feature, laptops erroneously registered as missing or stolen turned out to be in a classroom, being used by students, all along. Even if we defer to their suspicion that a laptop has been stolen—and I think it’s an open question whether that’s the appropriate description of a student improperly taking home the laptop he was issued—experts appear to be in agreement that the legitimate purpose of locating it could have been accomplished far less intrusively. The CEO of the company that sells the tracking software avers that  the webcam feature “really doesn’t serve any purpose” and intends to remove it from the next version of the program.

So to recap: Monitoring that reveals even trivial and non-intimate private information about a home is presumptively unreasonable. Remote activation of a laptop webcam without notice or consent is indisputably a search revealing details about the interior of a home, and potentially far, far more intimate details than were at issue in either Kyllo or Karo. Very narrow searches meant to detect the presence or absence of contraband in a private place may be exempt from that presumption, but only when this is the only information thereby revealed. Even when an investigator is lawfully present (telepresent?) in a home, actions that further reveal facts about objects in the home are separate searches subject to a probable cause standard. There is simply no plausible way to shoehorn this case into any of the recognized exceptions to the strong Fourth Amendment protection to which dwellings are subject. If, armed with information about the IP address from which a laptop has checked in, school officials wish to conduct more intrusive surveillance of the home to gather evidence, they should contact the police and seek a probable cause warrant—not play Batman with cameras in a teenager’s bedroom.

  • http://www.cato.org/ Jim Harper

    You and Orin Kerr both assume (mistakenly in my view) that any laptop not on the school network must be in a home and that school officials must know that. That makes it easy to conclude that signals made by the camera reveal activity in the home and that school officials know that. But they may not, and I believe a court would recognize the Catch-22 in which your approach would place school officials. “Issuing” laptops to kids means “giving away” laptops if you have to get a warrant to look for them when they've gone missing.

    This case is unlike Karo because it deals with allegedly stolen government property, not a sensor inserted by agents into citizens’ property. Government agents don't have to put sensors on people's stuff – they do (in exercise of due care and reason) have to husband government property.

    Orin Kerr is one of those law professors who spends so much time on doctrine that he often loses sight of the actual language (and better meaning) of the Fourth Amendment. You do the same where you say: “[W]henever government agents engage in non-consensual monitoring that reveals any information about activity in the interior of the home, that’s a violation of the right against unreasonable search.” That's not the constitutional baseline.

    The Fourth Amendment requires searches and seizures to be reasonable. The “home/curtilege” language, while an important gloss, is doctrine, and you've been fooled by it into writing about homes in absolute terms. A law enforcement officer standing on a public street, for example, can look through an uncovered window or listen to sounds coming from a home without violating anyone's rights.

    This is a case of first impression, where government officials were trying to locate a sensor they believed to be stolen. In such cases, doctrine is tested, and it’s more susceptible to failure. My earlier post and the comments (linked second above in your post) answer most of what else is here.

    To wit, ergo, and heretofore. Just in case the stuff above doesn't come off legally stuffy enough.

  • http://www.juliansanchez.com/ Julian Sanchez

    The Fourth Amendment requires searches to be reasonable, but the courts don't normally make an ad hoc assessment of reasonableness in each case. The clearly stated rule for homes is that warrantless searches are unreasonable absent exigent circumstances. Maybe you're saying that the constitution (properly interpreted) doesn't require this, but it strikes me as a pretty good rule—and in any event, it's the one that's in effect right now. But look, if you WANT to do a pure reasonableness analysis, then the interest in recovering missing property does not, in my view, come anywhere close to justifying surreptitious surveillance in private homes, especially in light of the many less intrusive means available.

    The idea that they're just giving laptops away unless they can take pictures in homes is especially odd given the existence of alternative methods of investigation. Obviously if they wanted to “go looking for” a missing laptop in a student's home by means of a physical search, they'd have to get a warrant. Are they just giving laptops away unless we suspend the warrant requirement there, too?

    I think you're getting lured in by the fact that the camera here happens to be built into the laptop. But why would it be different in principle if, having remotely ascertained the location of a laptop sans camera, they used a flying minicam drone or some kind of through-the-wall imaging technology to see into the upstairs bedroom where the camera appeared to be located?

  • http://www.juliansanchez.com/ Julian Sanchez

    Just to expand slightly: Sure, you can say “well, bugger doctrine and all these old Fourth Amendment cases that say one thing about the home, I have a better reading of the pure text untainted by these accretions of precedent, and it says something else.” But I'm glad that we don't live in a system that generally works that way. Because obviously people are going to have a range of divergent views about what kind of intrusions seem “reasonable” in particular cases. Doctrine at least gives us a way to bound the parameters of that disagreement and render it more managable and predictable. Otherwise every change of circumstance and every novel technology leaves you starting from scratch.

  • orinkerr

    Based on a quick skim, I think Julian is right and Jim is wrong.

    I wonder if the dispute here boils down to what the meaning of “is” is, at least when we say what the Fourth Amendment “is.” Is the Fourth Amendment what the Courts say it is, or is it what we individually think it should mean? Jim,you interpret the Fourth Amendment as being partly based on what you think it should mean. In your view, you have not been “fooled” by the law on the books, and you have insights into the Fourth Amendment that only you can see and the rest of us are blind to perceiving. It contrast, Julian is answering what the existing law on the books says.

  • http://www.cato.org/ Jim Harper

    Doctrine often does more harm than good. I posted on Cato@Liberty again yesterday pointing out how harmful the “reasonable expectation of privacy” doctrine is.

    http://www.cato-at-liberty.org/2010/02/25/on-fo

    But you seem to be selectively using doctrine as well. Home/curtilege doctrine is sacrosanct, but “plain view” is out?

    Let me switch gears, though, and ask you about a similar fact pattern that has been considered in court. In United States v. King, 509 F.3d 1338 (11th Cir. 2007), the defendant had attached his computer to a military network from his dorm room, not realizing that his computer’s security settings allowed his files to be shared with the entire network. A military computer specialist on the network, happening across his files, discovered child pornography and reported it.

    Were authorities violating the Fourth Amendment when they looked at the files on his computer, which was in his dorm room?

  • http://www.cato.org/ Jim Harper

    It's an interesting question: Is the Fourth Amendment the language that appears in the Fourth Amendment, or is it something else? Too bad if that's hard to answer. I don't mean to personally impugn you, Professor Kerr, but you're in the doctrine business. (I mean to professionally impugn you! ;-) Much doctrine is not helpful, especially when it gets attenuated from the words of the constitution.

    We're debating this because I don't think “the books” answer this question. You and Julian may be applying doctrine inaptly when you should be looking to the Fourth Amendment's actual terms first, using doctrine where it fits and casting it aside where it doesn't.

    “Houses are sacrosanct” (doctrine) is not a great answer to “I think x is 'reasonable.'” (Fourth Amendment) Julian has asked whether houses go to the reasonableness question – which is good – and I think they do – but he generally wants “house” doctrine to trump the reasonableness inquiry.

  • http://juliansanchez.com/ Julian Sanchez

    Who said “plain view is out”? I'm all about plain view if it's applied correctly and consistently. But I devote a big chunk of the post to arguing that you're applying it in a weird and circular way that conflicts with all the actual rulings on the doctrine. You don't get to turn on the camera, then justify turning it on because everything it captures is in “plain view” once you've turned it on. Anything is in plain view AFTER you conduct the search that exposes it.

    In King, the defendant himself installed file sharing software that made his files visible to others on the network. Which is the difference between turning on your own webcam to broadcast on a public channel (even inadvertently) and having someone else turn it on for you.

  • http://www.cato.org/ Jim Harper

    You're denying the existence of plain view when you say “[W]henever government agents engage in non-consensual monitoring that reveals any information about activity in the interior of the home, that’s a violation of the right against unreasonable search.” This denies that government agents can stand on a street and see through an unshaded window or listen to sounds coming from inside a house.

    In King, the government looked at files on a computer *in the home* – the sacrosanct location where a warrant is required before looking. You're now switching rationales – saying that the defendant's volition can invite government agents in. Well, the kid brought the laptop into the house.

  • http://juliansanchez.com/ Julian Sanchez

    This reads like a reductio of textualism: “There may be a bunch of doctrine specifying when searches are reasonable, but the Fourth Amendment says only that searches must be reasonable, without further specification—therefore, all the doctrine is superseded by my de novo assessment of what's reasonable! Fidelity to the text means I get to follow my gut anew each time!” Again, wow am I glad the law doesn't actually work this way.

  • http://www.cato.org/ Jim Harper

    I think you're overreading my critique of doctrine. I think there can be new fact situations in which doctrine isn't adequate, and I think one should return to the language of the amendment as a touchstone in such cases. Is that wrong?

  • http://juliansanchez.com/ Julian Sanchez

    Sigh. OK. “Whenever government agents engage in non-consensual monitoring that reveals activity that would not be visible by ordinary visual inspection from a vantage point outside the curtilage…” I pretty clearly acknowledged the more complete statement of the principle earlier on. And honestly, you're grasping at straws with this King analogy; do I really have to walk through the distinction between broadcasting something and being bugged?

  • http://www.cato.org/ Jim Harper

    I'm sensing exasperation… You wanted to continue this debate on the blog.

    Sorry if I missed your subtlety elsewhere, but to me you seemed locked on the “home” thing, giving it more than I think it's due in this case. And when I pushed back on it hard enough to finally get your attention, you lashed me with the charge of textualism ad absurdum.

    I don't recommend expanding the debate to new territory and terminology, but if you believe you can show that connecting a hard-drive enabled computer in a dorm room to a network is “broadcasting” while connecting a camera-enabled computer in a house to a network is “being bugged,” I will hold you to your offer of proof. Be nice about it!

  • http://juliansanchez.com/ Julian Sanchez

    I think that's eminently (ahem) reasonable, but the point of having the doctrine is defeated if you go back to square one every time doctrine yields a different result from your intuition about what's reasonable.

  • http://juliansanchez.com/ Julian Sanchez

    Sorry, the cases seem obviously different to me—maybe they aren't. In King, the defendant himself installed software that he knew or reasonably should have known would expose files on his hard drive to the general public. This is pretty much the definition of the plain view doctrine: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” In the Lower Merion case, software installed on the laptop, without notice to the student or his parents, gave the governmental actors who had installed it a secret backdoor means of conducting surveillance within the home.

    The King defendant knew or reasonably should have known that his actions would have the effect of exposing the contents of his hard drive to the general public. Blake Robbins and his parents did not know, and should not reasonably be expected to have known, that bringing his laptop home would expose his actions in the home to government monitors.

  • http://juliansanchez.com/ Julian Sanchez

    Related: In King, anyone outside the home could have observed the files on the drive by ordinary visual (err, ordinary digital) observation, which makes it very closely analogous to activity visible from the public street through an pen window. Here, we're talking about a surreptitious surveillance mechanism available only to the government actor.

  • orinkerr

    Jim,

    Ignoring your ad hominem argument, I am not sure why you see your approach as textualist. You're adopting (a) the modern Supreme Court's incorporation cases, that apply the Fourth Amendment to the states; (b) the modern Supreme Court's definition of “reasonableness” as a cost/benefit analysis, and then (c) rejecting the rest of Supreme Court doctrine on the ground that it's just “doctrine” and that's not your “business.” But nowhere in the text does the Fourth Amendment say that a search is “reasonable” based on the kind of totality of the circumstances inquiry you have in mind, and that seems to be the key move you're making. If Thomas Davies is right, that's a 20th century concept of “reasonableness” that the modern Supreme Court invented, not a concept that the Framers had. Now, maybe that's what “reasonableness” should mean, but if you're not going to be wedded to doctrine, then I would think you need a theory of why that is the meaning of reasonableness. What's the theory?

  • http://www.cato.org/ Jim Harper

    Here's how your brother, Professor Kerr, dealt with it, declining to use plain view, but rather “special needs.” So much for doctrine…

    http://volokh.com/posts/1198012793.shtml

  • http://www.cato.org/ Jim Harper

    I didn't call me textualist.

  • orinkerr

    Then what theory of the Fourth Amendment are you applying?

  • http://juliansanchez.com/ Julian Sanchez

    Well, the two rationales aren't necessarily in conflict… He's arguing that they could fall back on “special needs” because plain view seems like a close call here.

  • http://www.techliberation.com Adam Thierer

    Guys… I have absolutely nothing of substance to add to this conversation, but just wanted to say it is terrifically interesting and enlightening to me (and others, I bet). We should revive the TLF podcast and just have the 3 of you fight about this for a half hour!

  • Ryan Radia

    Didn't Robbins sacrifice his reasonable expectation of privacy in the home when he brought a school laptop home in blatant violation of school rules? He had notice that he wasn't supposed to remove the laptop from school grounds, yet he did so anyway, not only taking it home but also placing its visible webcam in a direct light of sight with his activities. A number of courts have ruled that society does not recognize as reasonable an individual's expectation of privacy over data that has been inadvertently revealed to the public and/or government when reasonable, commonplace precautions could have prevented the disclosure of that data. If for instance you leave your Wi-fi connection open, regardless of whether you understand how wifi works, files in your shared public folders are fair game for warrantless search. What's so unreasonable about expecting individuals to not take home government property if they care about the right to be free from warrantless searches and seizures in the home?

  • http://www.juliansanchez.com/ Julian Sanchez

    I think there's a tendency here to conflate the sense that, to put it crudely, it “serves you right” if you get caught on a camera you weren't supposed to bring home with the REP analysis. But it's one question whether he acted wrongly in taking the laptop home, and another whether in doing so he waived his (and his parents') expectation of privacy in the home. If there had been notice—and maybe even if we lived in a world where laptops removed from their “home” networks were widely known to routinely begin transmitting photographs to their owners—there would be a stronger case, but given that the district itself is acknowledging that it should have notified the parents about this capability, I don't think so. It may also be at least somewhat relevant that we're talking about a minor student here: Even in cases where a minor explicitly consents to the search of a parent's home, there's typically a somewhat more searching inquiry into whether the “totality of circumstances” supports the validity of the consent. Again, given the strong presumption against even trivial monitoring within the home, I'd think the default would be not to assume a waiver. Put it this way: If the school had good evidence that the kid had stolen something ELSE from the school, and decided to turn on the laptop camera to check, would you say he'd waived his expectation of privacy by having a school laptop in his bedroom?

    Finally, I think it's worth flipping it to the perspective of the school and asking about the “reasonableness” of the search from that end. (Except, pace Jim, I think “reasonableness” needs to be read as significantly constrained by the caselaw, since people seem to have wildly varying intuitions about what's reasonable.) Given that they have previously activated the tracking feature in cases where laptops were falsely believed to be stolen, given the probability of highly intrusive surveillance into the most protected area—possibly the area of someone other than the one who removed the laptop—and given that the location of the laptop could be determined without the use of the camera, was the use of visual monitoring reasonable? Note one important difference from other kinds of network security: Any member of the public chancing across an open network could log in, not knowing whether the network was left open deliberately or through ineptitude. We wouldn't give the same benefit of the doubt to someone walking into an unlocked private home, because norms are rather clearer there, even if locking the door is a “trivial measure.”

  • http://juliansanchez.com/ Julian Sanchez

    I was actually just planning to sit Harper down in a bar with a Flipcam…

  • JO

    An interesting exception to your argument might be that–assuming these privacy violations are really only a concern if it's a student in possession of the laptop (as opposed to a ''real'' thief)–that the school district's most effective method for recovery IS to see the face of the person using it, precisely because schools are such small, closely-knit communities. You could even argue–absent the glaring concerns about abuse of such a policy–that IP tracking or a gps locator, which could be activated and possibly investigated by law enforcement, would be even more intrusive (and certainly a lot more work). What would the uproar be if it was geo-location at issue? I think it'd be seen nearly as invasive, albeit in a different way. In my mind the key issue to assess reasonableness here is disclosure. A school might be able to reasonably use webcams for laptop recovery, but not without families knowing about that capability. I think by that standard, it fails the reasonableness standard on its face.

  • Stu Freeman

    Since the school district does not know what the camera will take a picture of when it activates the lost/stolen software, it may well produce a picture of a naked child.

    This is not “reasonable”. Since there is a possibility of producing child porn, this cannot be considered a reasonable search. I would suggest it is not even reasonable with a search warrant given that the police may produce child porn.

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  • http://laptopreviews.2ublog.com/tag/macbook-mc024/ themust01

    The idea that they're just giving laptops away unless they can take pictures in homes is especially odd given the existence of alternative methods of investigation.Thank for good post.

  • http://laptopreviews.2ublog.com/tag/macbook-mc207-user-review/ tomorop

    which is good – and I think they do – but he generally wants “house” doctrine to trump the reasonableness inquiry. Thank you

  • http://laptopreviews.2ublog.com/tag/macbook-mc024/ themust01

    The idea that they're just giving laptops away unless they can take pictures in homes is especially odd given the existence of alternative methods of investigation.Thank for good post.

  • http://laptopreviews.2ublog.com/tag/macbook-mc207-user-review/ tomorop

    which is good – and I think they do – but he generally wants “house” doctrine to trump the reasonableness inquiry. Thank you

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