This post was co-authored by EFF legal intern Virginia Kennedy
Under the Fourth Amendment, police can search your home, your computer, and other private spaces without a warrant or even probable cause if you freely and voluntarily consent to the search. But even when someone consents to a search, they should be able to change their mind. Say, for example, if a lawyer gives them better advice. But as a recent case from the Maryland Supreme Court demonstrates, searches of digital data stored on electronic devices raise unique questions about consent. If you consent to a search of your computer and police make a copy of the data on the computer, can they still examine that copy if you withdraw that consent? In State v. McDonnell, the Maryland Supreme Court sensibly answered no.
In June 2019, police officers visited Mr. McDonnell’s home and requested to search his home, computer, and phone as part of their investigation into the distribution of child pornography . Mr. McDonnell originally declined the search, but later signed a consent form allowing the agents to search his home and seize his phone and computer. The form included a clause stating that “I understand that I may withdraw my consent at any time.” After Mr. McDonnell’s electronics had been seized and their contents copied, but before the contents had been examined, Mr. McDonnell’s lawyer sent an email withdrawing consent to “the seizure of [Mr. McDonnell’s] laptop, or examination of its contents.” But agents searched the contents of the computer anyway. McDonnell moved to suppress the evidence that came from the search of his computer after he had revoked his consent.
It is incorrect to claim that a person lacks a reasonable expectation of privacy for the copy of computer data after they have revoked their consent
EFF and the National Association of Criminal Defense Lawyers filed an amicus brief in the Maryland Supreme Court arguing that law enforcement’s warrantless examination of the copy violated the Fourth Amendment. Specifically, we argued that regardless of the location, people have a heightened interest in their digital data and that the consent exception to the Fourth Amendment’s warrant requirement should reflect that heightened privacy interest. Thanks to the breakneck technological advancements in storage capabilities people are storing more and more sensitive information on their phones and computers. With much more ease, law enforcement can now access huge swaths of private information with a few clicks to aid in their investigations. And, of course, police often do so with very little judicial oversight. Ultimately, there is no difference between “computer data” and a “copy of computer data” to that data’s owner. Therefore, it is incorrect to claim that a person lacks a reasonable expectation of privacy for the copy of computer data after they have revoked their consent.
The Maryland Supreme Court unanimously agreed, holding that because Mr. McDonnell withdrew consent before the government examined the data, he did not lose his reasonable expectation of privacy in the data and that the government’s search violated the Fourth Amendment. Notably, the court found that Mr. McDonnell had a “privacy interest in the data itself,” even though he had legally lost a “possessory interest” in the copy by consenting to the copying. This holding closely follows the Maryland court’s ruling last year that although someone can lose ownership of a physical device by abandoning it, they do not necessarily abandon privacy in the device’s contents. The state argued that Mr. McDonnell retained no expectation of privacy for any copies that the government made with consent, analogizing copying digital data to photocopying a piece of paper . Thankfully, the Court disagreed, stating that, “[d]ata stored on electronic devices is both qualitatively and quantitatively different from physical analogues.” A better analogy, the court wrote, would be the “interruption of a consented-to search of a home by withdrawal of consent—police would have to promptly leave the home and seek a warrant, or other authorization, in order to further search.”
While the language of the form Mr. McDonnell signed in this case was not clear enough to grant the government permanent authorization to search the copy it made, the court declined to answer whether more unambiguous language could strip an individual of their ability to withdraw consent after a copy has been made. That’s unfortunate. To the extent police should ever be allowed to ask for consent to search, that consent must never be taken for granted or obtained through coercion. A consent form that deprived the signed of the right to change their mind the moment they signed would call into question the voluntariness of the consent itself. Although the court left this important question open, McDonnell is a welcome decision in a time of rampant data collection and little oversight over who can access it.