it's the law ... choose sides carefully On Jun 28, 8:02 pm, Travis <[email protected]> wrote: > https://www.eff.org/wp/know-your-rights**** > > ** ** > Know Your Rights! <https://www.eff.org/wp/know-your-rights>**** > > [image:https://www.eff.org/files/know-your-rights-privacy.png]By Hanni > Fakhoury, EFF Staff Attorney > June 2011**** > > Know Your Rights > Whitepaper<https://www.eff.org/files/EFF_Know_Your_Rights_2011.pdf>(pdf) > EFF Police Tips <https://www.eff.org/files/EFF_Police_Tips_2011.pdf> (pdf)** > ** > > Your computer, your phone, and your other digital devices hold vast amounts > of personal information about you and your family. This is sensitive data > that's worth protecting from prying eyes - including those of the > government.**** > > The Fourth Amendment to the Constitution protects you from unreasonable > government searches and seizures, and this protection extends to your > computer and portable devices. But how does this work in the real world? > What should you do if the police or other law enforcement officers show up > at your door and want to search your computer?**** > > EFF has designed this guide to help you understand your rights if officers > try to search the data stored on your computer or portable electronic > device, or seize it for further examination somewhere else.**** > > Because anything you say can be used against you in a criminal or civil > case, before speaking to any law enforcement official, you should consult > with an attorney.**** > > *Q:* > > *Can the police enter my home to search my computer or portable device, like > a laptop or cell phone?***** > > *A:* > > *No,* in most instances, unless they have a warrant. But there are two major > exceptions: (1) you consent to the > search;1<https://www.eff.org/wp/know-your-rights#footnote1_emzw9bk>or > (2) the police have probable cause to believe there is incriminating > evidence on the computer that is under immediate threat of > destruction.2<https://www.eff.org/wp/know-your-rights#footnote2_pcczjch> > **** > > ** ** > > *Q:* > > *What if the police have a search warrant to enter my home, but not to > search my computer? Can they search it then?***** > > *A:* > > *No,* typically, because a search warrant only allows the police to search > the area or items described in the > warrant.3<https://www.eff.org/wp/know-your-rights#footnote3_qfsxppw>But > if the warrant authorizes the police to search for evidence of a > particular crime, and such evidence is likely to be found on your computer, > some courts have allowed the police to search the computer without a > warrant.4 > <https://www.eff.org/wp/know-your-rights#footnote4_ki7r7dp>Additionally, > while the police are searching your home, if they observe > something in plain view on the computer that is suspicious or incriminating, > they may take it for further examination and can rely on their observations > to later get a search > warrant.5<https://www.eff.org/wp/know-your-rights#footnote5_8wunwrg>And > of course, if you consent, any search of your computer is permissible. > **** > > ** ** > > *Q:* > > *Can my roommate/guest/spouse/partner allow the police access to my > computer?***** > > *A:* > > *Maybe.* A third party can consent to a search as long as the officers > reasonably believe the third person has control over the thing to be > searched.6 <https://www.eff.org/wp/know-your-rights#footnote6_ny3xgzh>However, > the police cannot search if one person with control (for example a > spouse) consents, but another individual (the other spouse) with control > does not.7 <https://www.eff.org/wp/know-your-rights#footnote7_wdnik6q> One > court, however, has said that this rule applies only to a residence, and not > personal property, such as a hard drive placed into someone else's computer. > 8 <https://www.eff.org/wp/know-your-rights#footnote8_b305n7f>**** > > ** ** > > *Q:* > > *What if the police want to search my computer, but I'm not the subject of > their investigation?***** > > *A:* > > It typically does not matter whether the police are investigating you, or > think there is evidence they want to use against someone else located on > your computer. If they have a warrant, you consent to the search, or they > think there is something incriminating on your computer that may be > immediately destroyed, the police can search it. Regardless of whether > you're the subject of an investigation, you can always seek the assistance > of a lawyer.**** > > ** ** > > *Q:* > > *Can I see the warrant?***** > > *A:* > > *Yes.* The police must take the warrant with them when executing it and give > you a copy of > it.9<https://www.eff.org/wp/know-your-rights#footnote9_eud14wi>They > must also knock and announce their entry before entering your home > 10 <https://www.eff.org/wp/know-your-rights#footnote10_nnx3oth> and must > serve the warrant during the day in most > circumstances.11<https://www.eff.org/wp/know-your-rights#footnote11_59lcttg> > **** > > ** ** > > *Q:* > > *Can the police take my computer with them and search it somewhere else?**** > * > > *A:* > > *Yes.* As long as the police have a warrant, they can seize the computer and > take it somewhere else to search it more thoroughly. As part of that > inspection, the police may make a copy of media or other files stored on > your computer.12<https://www.eff.org/wp/know-your-rights#footnote12_ppsukui> > **** > > ** ** > > *Q:* > > *Do I have to cooperate with them when they are searching?***** > > *A:* > > *No,* you do not have to help the police conduct the search. But *you should > not physically interfere with them, obstruct the search, or try to destroy > evidence*, since that can lead to your arrest. This is true even if the > police don't have a warrant and you do not consent to the search, but the > police insist on searching anyway. In that instance, do not interfere but > write down the names and badge numbers of the officers and immediately call > a lawyer.**** > > ** ** > > *Q:* > > *Do I have to answer their questions while they are searching my home > without a warrant?***** > > *A:* > > *No,* you do not have to answer any questions. In fact, because anything you > say can be used against you and other individuals, it is best to say nothing > at all until you have a chance to talk to a lawyer. However, if you do > decide to answer questions, be sure to tell the truth. It is a crime to lie > to a police officer and you may find yourself in more trouble for lying to > law enforcement than for whatever it was they wanted on your > computer.13<https://www.eff.org/wp/know-your-rights#footnote13_wt70woy> > **** > > ** ** > > *Q:* > > *If the police ask for my encryption keys or passwords, do I have to turn > them over?***** > > *A:* > > *No.* The police can't force you to divulge anything. However, a judge or a > grand jury may be able to. The Fifth Amendment protects you from being > forced to give the government self-incriminating testimony. If turning over > an encryption key or password triggers this right, not even a court can > force you to divulge the information. But whether that right is triggered is > a difficult question to answer. If turning over an encryption key or > password will reveal to the government information it does not have (such as > demonstrating that you have control over files on a computer), there is a > strong argument that the Fifth Amendment protects > you.14<https://www.eff.org/wp/know-your-rights#footnote14_cnawh8n>If, > however, turning over passwords and encryption keys will not > incriminate > you, then the Fifth Amendment does not protect you. Moreover, even if you > have a Fifth Amendment right that protects your encryption keys or > passwords, a grand jury or judge may still order you to disclose your data > in an unencrypted format under certain > circumstances.15<https://www.eff.org/wp/know-your-rights#footnote15_j6zcnpb>If > you find yourself in a situation where the police are demanding that > you > turn over encryption keys or passwords, let EFF know.**** > > ** ** > > *Q:* > > *If my computer is taken and searched, can I get it back?***** > > *A:* > > *Perhaps.* If your computer was illegally seized, then you can file a motion > with the court to have the property > returned.16<https://www.eff.org/wp/know-your-rights#footnote16_s17p0zg>If > the police believe that evidence of a crime has been found on your > computer (such as "digital contraband" like pirated music and movies, or > digital images of child pornography), the police can keep the computer as > evidence. They may also attempt to make you forfeit the computer, but you > can challenge that in > court.17<https://www.eff.org/wp/know-your-rights#footnote17_b3aqgg6> > **** > > ** ** > > *Q:* > > *What about my work computer?***** > > *A:* > > *It depends.* Generally, you have some Fourth Amendment protection in your > office or > workspace.18<https://www.eff.org/wp/know-your-rights#footnote18_wa1r13h>This > means the police need a warrant to search your office and work > computer > unless one of the exceptions described above applies. But the extent of > Fourth Amendment protection depends on the physical details of your work > environment, as well as any employer policies. For example, the police will > have difficulty justifying a warrantless search of a private office with > doors and a lock and a private computer that you have exclusive access to. > On the other hand, if you share a computer with other co-workers, you will > have a weaker expectation of privacy in that computer, and thus less Fourth > Amendment > protection.19<https://www.eff.org/wp/know-your-rights#footnote19_5x0bllk>However, > be aware that your employer can consent to a police request to > search an office or > workspace.20<https://www.eff.org/wp/know-your-rights#footnote20_ztpjpme>Moreover, > if you work for a public entity or government agency, no warrant > is required to search your computer or office as long as the search is for a > non-investigative, work-related > matter.21<https://www.eff.org/wp/know-your-rights#footnote21_dx11c1e> > **** > > ** ** > > *Q:* > > *I've been arrested. Can the police search my cell phone without a warrant?* > **** > > *A:* > > *Maybe.* After a person has been arrested, the police generally may search > the items on her person and in her pockets, as well as anything within her > immediate > control.22<https://www.eff.org/wp/know-your-rights#footnote22_79aa8ko>This > means that the police can physically take your cell phone and anything > else in your pockets. Some courts go one step further and allow the police > to search the *contents* of your cell phone, like text messages, call logs, > emails, and other data stored on your phone, without a > warrant.23<https://www.eff.org/wp/know-your-rights#footnote23_4ysx44k>Other > courts disagree, and require the police to seek a warrant. > 24 <https://www.eff.org/wp/know-your-rights#footnote24_n2u3eoi> It depends > on the circumstances and where you live.**** > > ** ** > > *Q:* > > *The police pulled me over while I was driving. Can they search my cell > phone?***** > > *A:* > > *Maybe.* If the police believe there is probably evidence of a crime in your > car, they may search areas within a driver or passenger's reach where they > believe they might find it - like the glove box, center console, and other > "containers."25 > <https://www.eff.org/wp/know-your-rights#footnote25_r71cozc>Some > courts have found cell phones to be "containers" that police may > search > without a > warrant.26<https://www.eff.org/wp/know-your-rights#footnote26_my4ok8r> > **** > > ** ** > > *Q:* > > *Can the police search my computer or portable devices at the border without > a warrant?***** > > *A:* > > *Yes.* So far, courts have ruled that almost any search at the border is > "reasonable" - so government agents don't need to get a warrant. This means > that officials can inspect your computer or electronic equipment, even if > they have no reason to suspect there is anything illegal on > it.27<https://www.eff.org/wp/know-your-rights#footnote27_g1k5iu4>An > international airport may be considered the functional equivalent of a > border, even if it is many miles from the actual > border.28<https://www.eff.org/wp/know-your-rights#footnote28_d98ym08> > **** > > ** ** > > *Q:* > > *Can the police take my electronic device away from the border or airport > for further examination without a warrant?***** > > *A:* > > At least one federal court has said *yes,* they can send it elsewhere for > further inspection if > necessary.29<https://www.eff.org/wp/know-your-rights#footnote29_a8ligkg>Even > though you may be permitted to enter the country, your computer or > portable device may not be.**** > > *Want to test your new knowledge?* > Take EFF's Know Your Digital Rights > Quiz!<https://www.eff.org/pages/know-your-digital-rights-quiz> > **** > > *Need an easy way to remember your rights?* > We have a handy one-page > guide<https://www.eff.org/files/EFF_Police_Tips_2011.pdf>to help you > talk to police if they come knocking. Print for your server room > or workstation, or save it to your desktop for easy reference! **** > > *Want to learn more about how to protect yourself from unreasonable > government snooping on your computer or portable electronic devices?***** > > Then be sure to check out EFF's Surveillance Self-Defense > Guide!<https://ssd.eff.org/> > **** > > **1. **1. <https://www.eff.org/wp/know-your-rights#footnoteref1_emzw9bk> > *Schneckloth v. Bustamonte*, 412 U.S. 218, 219 (1973); *United States v. > Vanvilet*, 542 F.3d 259 (1st Cir. 2008).**** > > **2. **2. <https://www.eff.org/wp/know-your-rights#footnoteref2_pcczjch> > *Ker v. California*, 374 U.S. 23 (1963); *see also United States v. > Vallimont*, 378 Fed.Appx. 972 (11th Cir. 2010) (unpublished); *United States > v. Smith*, 2010 WL 1949364 (9th Cir. 2010) (unpublished).**** > > **3. **3. <https://www.eff.org/wp/know-your-rights#footnoteref3_qfsxppw> > *See Maryland v. Garrison*, 480 U.S. 79, 84-85 (1987) (citing cases).**** > > **4. **4. <https://www.eff.org/wp/know-your-rights#footnoteref4_ki7r7dp> > *See e.g., United States v. Mann*, 592 F.3d 779 (7th Cir. 2010); *see also > Brown v. City of Fort Wayne*, 752 F.Supp.2d 925 (N.D. Ind. 2010).**** > > **5. **5. <https://www.eff.org/wp/know-your-rights#footnoteref5_8wunwrg> > *Horton v. California*, 496 U.S. 128 (1990); *see also United States v. > Walser*, 275 F.3d 981 (10th Cir. 2001); *United States v. Carey*, 172 F.3d > 1268 (10th Cir. 1999).**** > > **6. **6. <https://www.eff.org/wp/know-your-rights#footnoteref6_ny3xgzh> > *Illinois v. Rodriguez*, 497 U.S. 177 (1990); *United States v. Stabile*, > 633 F.3d 219 (3d Cir. 2011); *United States v. Andrus*, 483 F.3d 711 (10th > Cir. 2007).**** > > **7. **7. <https://www.eff.org/wp/know-your-rights#footnoteref7_wdnik6q> > *Georgia v. Randolph*, 547 U.S. 103 (2006).**** > > **8. **8. <https://www.eff.org/wp/know-your-rights#footnoteref8_b305n7f> > *United States v. King*, 604 F.3d 125 (3d Cir. 2010) (court approved search > and seizure where two housemates shared a desktop computer, and one > housemate granted the police access to the entire computer over the other > housemate's objections, even though the objecting housemate was the sole > owner of a hard drive in the computer).**** > > **9. **9. <https://www.eff.org/wp/know-your-rights#footnoteref9_eud14wi> > Federal > Rule of Criminal Procedure > 41(f)(1)(C)<http://www.law.cornell.edu/rules/frcrmp/Rule41.htm> > .**** > > **10. **10. <https://www.eff.org/wp/know-your-rights#footnoteref10_nnx3oth> > *Wilson v. Arkansas*, 514 U.S. 927 (1995).**** > > **11. **11. <https://www.eff.org/wp/know-your-rights#footnoteref11_59lcttg> > Federal > Rule of Criminal Procedure > 41(e)(2)(A)(ii)<http://www.law.cornell.edu/rules/frcrmp/Rule41.htm> > .**** > > **12. **12. <https://www.eff.org/wp/know-your-rights#footnoteref12_ppsukui> > *See e.g., United States v. Hill*, 459 F.3d 966 (9th Cir. 2006); *In re > Search of 3817 W. West End, First Floor Chicago, Illinois 60621*, 321 > F.Supp.2d 953 (N.D. Ill. 2004); *see also* Federal Rule of Criminal > Procedure 41(e)(2)(B) <http://www.law.cornell.edu/rules/frcrmp/Rule41.htm>.* > *** > > **13. **13. > <https://www.eff.org/wp/know-your-rights#footnoteref13_wt70woy>Compare > 18 > U.S.C. § 1001(a) <http://www.law.cornell.edu/uscode/18/1001.html> (maximum > punishment for first offense of lying to federal officer is 5 or 8 years) > with 18 U.S.C. §§ 1030(a)(2) and > (c)(2)(A)<http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001030--...>(maximum > punishment for first offense of simply exceeding authorized > computer access is generally 1 year).**** > > **14. **14. <https://www.eff.org/wp/know-your-rights#footnoteref14_cnawh8n> > *See United States v. Kirschner*, 2010 WL 1257355 (E.D. Mich. Mar. 30, 2010) > (unpublished) (relying on *United States v. Hubbell*, 530 U.S. 27 (2000)).** > ** > > **15. **15. <https://www.eff.org/wp/know-your-rights#footnoteref15_j6zcnpb> > *See e.g., United States v. Hatfield*, 2010 WL 1423103 (E.D.N.Y. April 7, > 2010) (unpublished); *In re Boucher*, 2009 WL 424718 (D. Vt. Feb. 19, 2009) > (unpublished).**** > > **16. **16. <https://www.eff.org/wp/know-your-rights#footnoteref16_s17p0zg> > Federal > Rule of Criminal Procedure > 41(g)<http://www.law.cornell.edu/rules/frcrmp/Rule41.htm> > .**** > > **17. **17. <https://www.eff.org/wp/know-your-rights#footnoteref17_b3aqgg6> > *See* 18 U.S.C. § 983 <http://www.law.cornell.edu/uscode/18/983.html>, Federal > Rule of Criminal Procedure > 32.2<http://www.law.cornell.edu/rules/frcrmp/search/display.html?terms=32....> > .**** > > **18. **18. <https://www.eff.org/wp/know-your-rights#footnoteref18_wa1r13h> > *Mancusi v. DeForte*, 392 U.S. 364 (1968); *United States v. Ziegler*, 474 > F.3d 1184 (9th Cir. 2007).**** > > **19. **19. <https://www.eff.org/wp/know-your-rights#footnoteref19_5x0bllk> > *See e.g., Schowengerdt v. United States*, 944 F.2d 483 (9th Cir. 1991).**** > > **20. **20. <https://www.eff.org/wp/know-your-rights#footnoteref20_ztpjpme> > *See Ziegler*, 474 F.3d at 1191 (citing *Mancusi*).**** > > **21. **21. <https://www.eff.org/wp/know-your-rights#footnoteref21_dx11c1e> > *City of Ontario v. Quon*, 130 S.Ct. 2619 (2010); *O'Connor v. Ortega*, 480 > U.S. 709 (1987).**** > > **22. **22. <https://www.eff.org/wp/know-your-rights#footnoteref22_79aa8ko> > *Chimel v. California*, 395 U.S. 752 (1969). **** > > **23. **23. <https://www.eff.org/wp/know-your-rights#footnoteref23_4ysx44k> > *See e.g., United States v. Murphy*, 552 F.3d 405 (4th Cir. 2009); *United > States v. Wurie*, 612 F.Supp.2d 104 (D. Mass. 2009); *People v. Diaz*, 51 > Cal.4th 84, 244 P.3d 501 (2011).**** > > **24. **24. <https://www.eff.org/wp/know-your-rights#footnoteref24_n2u3eoi> > *See e.g., United States v. Wall*, 2008 WL 5381412 (S.D.Fla. Dec. 22, 2008) > (unpublished); *United States v. Park*, 2007 WL 1521573 (N.D. Cal. May 23, > 2007) (unpublished); *State v. Smith*, 124 Ohio St.3d 163, 920 N.E.2d 949 > (2009).**** > > **25. **25. <https://www.eff.org/wp/know-your-rights#footnoteref25_r71cozc> > *Arizona v. Gant*, 129 S.Ct. 1710 (2009).**** > > **26. **26. <https://www.eff.org/wp/know-your-rights#footnoteref26_my4ok8r> > *See e.g., United States v. Finley*, 477 F.3d 250 (5th Cir. 2007); *Wurie*, > 612 F.Supp.2d at 109-110; *United States v. Cole*, 2010 WL 3210963 > (N.D.Ga<http://n.d.ga/>. > Aug. 11, 2010) (unpublished); *United States v. McCray*, 2009 WL 29607 ( > S.D.Ga <http://s.d.ga/>. Jan. 5, 2009) (unpublished).**** > > **27. **27. <https://www.eff.org/wp/know-your-rights#footnoteref27_g1k5iu4> > *United States v. Flores-Montano*, 541 U.S. 149 (2004); *United States v. > Ickes*, 393 F.3d 501 (4th Cir. 2005).**** > > **28. **28. <https://www.eff.org/wp/know-your-rights#footnoteref28_d98ym08> > *Almeida-Sanchez v. United States*, 413 U.S. 266, 273 (1973); *United States > v. Arnold*, 533 F.3d 1003 (9th Cir. 2008); *United States v. Romm*, 455 F.3d > 990 (9th Cir. 2006); *United States v. Roberts*, 274 F.3d 1007 (5th Cir. > 2001).**** > > **29. **29. <https://www.eff.org/wp/know-your-rights#footnoteref29_a8ligkg> > *United States v. Cotterman*, 637 F.3d 1068 (9th Cir. 2011).**** > > ** ** > > image001.png > 27KViewDownload
-- Thanks for being part of "PoliticalForum" at Google Groups. For options & help see http://groups.google.com/group/PoliticalForum * Visit our other community at http://www.PoliticalForum.com/ * It's active and moderated. Register and vote in our polls. * Read the latest breaking news, and more.
![https://www.eff.org/files/know-your-rights-privacy.png]By](https://www.eff.org/files/know-your-rights-privacy.png]By){kind=link}