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Courts Grapple with Computer Searches

By Pamela A. MacLean
May 30, 2007
When Ray Andrus' 91-year-old father gave federal agents permission to search his son's password-protected computer files and they found child pornography, the case turned a spotlight on how appellate courts grapple with third-party consents to search computers.

With a growing number of criminal cases depending on forensic searches of computers, the direction courts ultimately take is likely to affect a wide array of cases, ranging from hacking and piracy to murder investigations, according to Orin Kerr, a George Washington University Law Center professor specializing in computer-crime law.

The Tenth Circuit's recent 2-1 decision in U.S. v. Andrus, No. 06-3094 (April 25, 2007), recognized for the first time that a password-protected computer is like a locked suitcase or a padlocked footlocker in a bedroom. The digital locks indicate the owner's expectation of privacy. The majority nonetheless refused to suppress the evidence.

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