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Thursday, August 8, 2002 |
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On Monday, a District Court in Puerto Rico held
that a defendant cannot claim a Fourth
Amendment violation when a police officer views
a photo the defendant has posted on the Web,
even if the defendant wishes the photo to remain
private. The case is United States v. Gines-
Perez, -- F. Supp.2d --, 2002 WL 1800682
(D.P.R. August 5, 2002).
The defendant, Gines-Perez, was the manager of
a computer store called "The Red Gecko" and
also a suspect in a major heroin smuggling
investigation. The police who were investigating
the smuggling operation found a picture of the
defendant on the web; Gines-Perez had begun to
set up a website for the computer store, and had
posted a group portrait of all of the store's
employees, including himself. The police
downloaded the photograph, and distributed it
among other officers so that they would be able
to recognize Gines-Perez. The officers'
recognition of the defendant helped lead to the
police stopping the car he was driving, which led
to the discovery of 1.4 kilos of heroin and $5,000
in cash in the car, and then to his arrest for
narcotics smuggling.
Before the district court, Gines-Perez argued
(among other things) that the police had violated
his Fourth Amendment rights by finding his
picture on the web and downloading it. Because
the website was still under construction, he
argued, it was "private" and not intended for
commercial use by the public. According to
Gines-Perez's lawyer, viewing the website and
downloading a copy was literally a Search
(finding the site) and a "seizure" (making a copy).
Because the police had not obtained a warrant
before surfing the web and downloading the
photos, that conduct violated his 4th Amendment
rights.
The Court rejected the argument with the
following analysis:
"The Court is convinced that placing information
on the information superhighway necessarily
makes said matter accessible to the public, no
matter how many protectionist measures may be
taken, or even when a web page is "under
construction." While it is true that there is no case
law on point regarding this issue, it strikes the
Court as obvious that a claim to privacy is
unavailable to someone who places information
on an indisputably, public medium, such as the
Internet, without taking any measures to protect
the information."
"The defense may claim that the web site in
controversy was not intended to be "public" or
"commercial" in nature. But it is not the intention
of the person who uses the Internet to
communicate information which is important; it is
the medium in which he or she places the
information and the nature of the materials
placed on the web which are important. A person
who places information on the information
superhighway clearly subjects said information to
being accessed by every conceivable interested
party. Simply expressed, if privacy is sought, then
public communication mediums such as the
Internet are not adequate forums without
protective measures. . . . A reasonable [person]
cannot place "private" information--such as a
"private" photograph--on the Internet, if he or she
desires to keep such information in actual
"privacy." A reasonable person does not protect
his private pictures by placing them on an
Internet site."
"The Court finds that this society is simply not
prepared to recognize as "reasonable" a claim
that a picture on the Internet is "private" in nature,
such that the Government cannot access it. In
fact, the Court believes that our society would
recognize the opposite; that a person who places
a photograph on the Internet precisely intends to
forsake and renounce all privacy rights to such
imagery, particularly under circumstances such
as here, where the Defendant did not employ
protective measures or devices that would have
controlled access to the Web page or the
photograph itself. "
Id. at *15-16. A plainly correct result.
[by Orin S. Kerr's Computer Crime Case Updates Mailinglist]
12:30
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On Monday, a District Court in Puerto Rico held that a defendant cannot claim a Fourth Amendment violation when a police officer views a photo the defendant has posted on the Web, even if the defendant wishes the photo to remain private. The case is United States v. Gines- Perez, -- F. Supp.2d --, 2002 WL 1800682 (D.P.R. August 5, 2002).
The defendant, Gines-Perez, was the manager of a computer store called "The Red Gecko" and also a suspect in a major heroin smuggling investigation. The police who were investigating the smuggling operation found a picture of the defendant on the web; Gines-Perez had begun to set up a website for the computer store, and had posted a group portrait of all of the store's employees, including himself. The police downloaded the photograph, and distributed it among other officers so that they would be able to recognize Gines-Perez. The officers' recognition of the defendant helped lead to the police stopping the car he was driving, which led to the discovery of 1.4 kilos of heroin and $5,000 in cash in the car, and then to his arrest for narcotics smuggling.
Before the district court, Gines-Perez argued (among other things) that the police had violated his Fourth Amendment rights by finding his picture on the web and downloading it. Because the website was still under construction, he argued, it was "private" and not intended for commercial use by the public. According to Gines-Perez's lawyer, viewing the website and downloading a copy was literally a Search (finding the site) and a "seizure" (making a copy). Because the police had not obtained a warrant before surfing the web and downloading the photos, that conduct violated his 4th Amendment rights.
The Court rejected the argument with the following analysis:
"The Court is convinced that placing information on the information superhighway necessarily makes said matter accessible to the public, no matter how many protectionist measures may be taken, or even when a web page is "under construction." While it is true that there is no case law on point regarding this issue, it strikes the Court as obvious that a claim to privacy is unavailable to someone who places information on an indisputably, public medium, such as the Internet, without taking any measures to protect the information."
"The defense may claim that the web site in controversy was not intended to be "public" or "commercial" in nature. But it is not the intention of the person who uses the Internet to communicate information which is important; it is the medium in which he or she places the information and the nature of the materials placed on the web which are important. A person who places information on the information superhighway clearly subjects said information to being accessed by every conceivable interested party. Simply expressed, if privacy is sought, then public communication mediums such as the Internet are not adequate forums without protective measures. . . . A reasonable [person] cannot place "private" information--such as a "private" photograph--on the Internet, if he or she desires to keep such information in actual "privacy." A reasonable person does not protect his private pictures by placing them on an Internet site."
"The Court finds that this society is simply not prepared to recognize as "reasonable" a claim that a picture on the Internet is "private" in nature, such that the Government cannot access it. In fact, the Court believes that our society would recognize the opposite; that a person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery, particularly under circumstances such as here, where the Defendant did not employ protective measures or devices that would have controlled access to the Web page or the photograph itself. "
[by Orin S. Kerr's Computer Crime Case Updates Mailinglist]
12:28
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Maximillian Dornseif, 2002.
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