The Michigan Court of Appeals issued an opinion on November 6, 2014 affirming a lower court’s decision excluding evidence recovered from Maximilian Paul Gingrich’s (“Defendant”) laptop computer in a child pornography case.

Defendant took his laptop to Best Buy for maintenance. An employee noticed suspicious file names while working on the laptop, and notified police. Police arrived at the store and asked the employee to access the files to ascertain whether or not they were actually child pornography. An employee attached Defendant’s hard drive to a Best Buy computer and confirmed the presence of child pornography on the drive.

The failure to obtain a search warrant prior to accessing the files was ultimately fatal to the charges brought against Defendant. The warrantless search was held to violate his Fourth Amendment right to freedom from unreasonable search and seizure. Specifically, the court held “physically attaching another device to its hard drive” was a trespass amounting to an unlawful search under the Fourth Amendment and a similar provision of the Michigan Constitution.

None of the possible exceptions to the warrant requirement were present, so the evidence was suppressed under the exclusionary rule. The photographs recovered from Defendant’s laptop were the only evidence in the case, so it was dismissed.

There’s no nice way to say it:

The police killed this case the moment they accessed that hard drive without a warrant. Their rush to obtain evidence allowed a possessor of child pornography to avoid the legal consequences of his crime.

I know law enforcement is a difficult job, and it’s often easier to blog about something after the fact than to make the perfect decision in the field every single time. But hopefully this case resulted in a comprehensive seminar on Fourth Amendment compliance in evidence gathering for the police department involved.

And hopefully the Defendant will be caught again, and when he is, the evidence will be lawfully gathered and the jail sentence very, very long.

Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas), and Suzan DelBene (D-Wash.) are pushing an amendment to the Electronic Communications Privacy Act that would require a warrant for authorities to obtain any email, instead of allowing free access to messages older than six months.

I wrote in January about Google’s decision to require a warrant even where the law does not, so the ECPA’s shortcomings in the digital age (the law is more than twenty years old) are sometimes mitigated by responsible corporate policies.

But a legitimate amendment like Lofgren’s would apply Google’s common sense approach to 4th Amendment rights to all such service providers. There’s simply no excuse not to get this done.

David Kravets quotes a Googler:

“Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the Constitution, which prevents unreasonable search and seizure,” Chris Gaither, a Google spokesman, said.

The Electronic Communications Privacy Act isn’t always as demanding as Google, and their assertion that the policy is based on Constitutional requirements implies that the ECPA does not comport with the same requirements. That’s a bold legal position to take, but as Mr. Kravets explains at Wired, Google isn’t necessarily alone.

Twenty-plus years is a long time, and the Electronic Communications Privacy Act is overdue for an update. A summary of the state of things:

Unfortunately these digital documents lack long-held privacy safeguards. Email saved in web-based email systems like Yahoo for longer than six months can be accessed with an administrative subpoena, which provides less protection than a warrant. Similarly, no matter what privacy setting you use, sensitive and personal information — photos, private journals, Facebook pages, corporate data, draft reports — shared with third parties like Google and Facebook can be accessible by police without a judge’s approval. All the government has to do is swear it’s “relevant” to an investigation.

Here’s to ensuring that the Fourth Amendment isn’t rendered moot by technological advancements.