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.

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