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
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