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There are some interesting opinions being generated on the collision between the 4th amendment, third party consent and the ability of police in the US to search computers without even knowing if it was password protected.
A summary:
The 4th amendment is supposed to protect against unreasonable searches and seizures. Barring a legally valid reason (e.g. one that would get them a warrant), police need permission to start going through your things. If someone else has access to your items (e.g. a shared storage room) then they can legally give police permission to search them.
A complicating factor is when access is protected by a lock. There is, in the eyes of the owner of the items (and US law), a higher expectation of privacy for things protected with a lock. If you don't have the key, you don't have legal access, and thus can't legally give permission to the police to search it.
What if the protected item in question is not physical, but virtual? Like say, data on a computer? And what if the lock (and keys) are also virtual? A recent 10th Circuit ruled that it does indeed fall under the legally recognized higher expectation of privacy.
The above is still relatively straightforward. What's controversial is if it's protected, but police have to explicitly look for the lock? That is to say, can police get permission from someone with legal physical access to your item, to search the protected virtual portion? The 10th Circuit ruling states that yes, they can, if the police reasonably believe the third party has authority to do so. They aren't even legally required to ask the third party if it's password protected. And even if it later discovered that it was indeed protected, the evidence is still valid as long as police met this standard.
Critics of this decision say it allows the police using it to do a "dangerous" end run around the intent of the 4th amendment, bypassing the extra protections granted under law to items protected with a lock.
A summary:
The 4th amendment is supposed to protect against unreasonable searches and seizures. Barring a legally valid reason (e.g. one that would get them a warrant), police need permission to start going through your things. If someone else has access to your items (e.g. a shared storage room) then they can legally give police permission to search them.
A complicating factor is when access is protected by a lock. There is, in the eyes of the owner of the items (and US law), a higher expectation of privacy for things protected with a lock. If you don't have the key, you don't have legal access, and thus can't legally give permission to the police to search it.
What if the protected item in question is not physical, but virtual? Like say, data on a computer? And what if the lock (and keys) are also virtual? A recent 10th Circuit ruled that it does indeed fall under the legally recognized higher expectation of privacy.
The above is still relatively straightforward. What's controversial is if it's protected, but police have to explicitly look for the lock? That is to say, can police get permission from someone with legal physical access to your item, to search the protected virtual portion? The 10th Circuit ruling states that yes, they can, if the police reasonably believe the third party has authority to do so. They aren't even legally required to ask the third party if it's password protected. And even if it later discovered that it was indeed protected, the evidence is still valid as long as police met this standard.
Critics of this decision say it allows the police using it to do a "dangerous" end run around the intent of the 4th amendment, bypassing the extra protections granted under law to items protected with a lock.