In this case, Commonwealth v. Sodomsky, an individual delivered his PC to CircuitCity to have a DVD drive installed. Although he did not ask for any software to be installed, he was informed that installation of the DVD drive would necessarily include testing the DVD drive. While testing the DVD-drive, the technician subsequently discovered contraband and reported it to the police. The police seized the evidence under the plain view doctrine.
Significantly, the Pennsylvania Superior Court held that defendant’s acquiescence to the installation of a DVD drive was a de facto acquiescence to the installation of software (whether he knew it or not). The court reasoned that he, therefore, “volitionally relinquished any expectation of privacy in that item by delivering it to CircuitCity employees knowing that those employees were going to install and test a DVD drive.”
In arriving at this conclusion, the court employed the legal theory of “abandonment,” whereby an individual evidences an intent to relinquish control over personal property (“whether a person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search”) (quoting Commonwealth v. Shoatz, 366 A.2d 1216, 1220 (1976)).
Yet, although the court explained that the legal construct “revolves around the issue of intent,” it rejected defendant’s assertion that he did not intend for CircuitCity employees to access his personal video cache any more than he expected them to access his personal financial information or other files. The court specifically noted that defendant “failed to either inquire as to how the DVD drive would be tested or otherwise restrict the employees’ access to his computer files.” The court also noted that CircuitCity was employing a commercially acceptable manner for testing the DVD drive, rather than setting out to discover illicit contraband.
While I take no position on the ruling of the court, it occurs to me that this is an instance where “ignorance” commands a higher premium than “intent.” Another such case was Long v. Marubeni America Corporation, 2006 WL 2998671 (S.D.N.Y., October 19, 2006), where that court held that both the attorney client and work product privileges were waived by employees using a company computer system to transmit otherwise privileged communications to private counsel, which communications were sent from private password-protected accounts (not from the employer’s email system). Significantly, a cache of the emails were retained by the company’s system as “temporary internet files.” Because the company could and did obtain these emails by reviewing its own system, the court held that the waiver was created through employees’ failure to maintain the confidentiality of these communications with regard to the company’s electronic communications policy, which policy advised employees not to use the company system for personal purposes and warned that they had no right of privacy in any materials sent over the system. The court reached this result notwithstanding its factual finding that employees were without knowledge that a cache of their email communications had been retained.
Thus, in these cases, and including the recent In Re Boucher (defendant, who used PGP to encrypt alleged contraband not required to divulge passphrase), we see where a presumption of a reasonable expectation of privacy can be overcome by a defendant’s failure to take specific precautions to safeguard property or communications. The phrase, “knew or reasonably should have known” is employed in these cases to mean that lack technological expertise on the part of a layperson may result in waiver.