Cloud Storage & Privacy

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In State v. Harrier, the WA Court of Appeals held that a person holds no privacy interest in  images obtained by an internet cloud storage service provider who then gives the images to law enforcement.

BACKGROUND FACTS

Synchronoss Technologies, Inc. is an internet cloud storage provider that provides cloud based storage for Verizon Wireless customers. The defendant Mr. Harrier had a Verizon account and subscribed to Synchronoss Cloud storage.

Synchronoss ran a cursory search of all stored digital files and found six digital images with hash values matching those of known instances of child pornography. Synchronoss reported this information via CyberTip to the National Center for Missing and Exploited Children (NCMEC) who forwarded the information to local police for investigation.

The police opened and viewed the six image files and confirmed that the images were child pornography. Police then obtained search warrants based on the descriptions of the images and served them on Verizon and Synchronoss. The search warrant directed Synchronoss to provide “all information” held by Synchronoss associated with the suspect telephone number associated with the images.

Police received information from Verizon that confirmed that Harrier was the subscriber/account holder for the suspect telephone number. Synchronoss also gave police a thumb drive containing account data associated with the suspect telephone number.

Law enforcement obtained a search warrant for Harrier’s residence. They seized Harrier’s cell phone. The cell phone was determined to be the same phone associated with the Verizon account and the Synchronoss files that were the basis of the initial search warrant.

Law enforcement interviewed Harrier after advising him of his constitutional rights prior to asking questions. He made incriminating statements. Harrier was later charged with two counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and three counts of second degree possession of depictions of a minor engaged in sexually explicit conduct.

Prior to trial, Harrier filed a 3.6 motion to suppress the evidence against him, and the trial court denied the motion. The parties proceeded to a bench trial. Harrier was found guilty as charged. Harrier appealed on arguments that the police, by opening and viewing the images from NCMEC, exceeded the scope of Synchronoss’ lawful search of the images and thus, the opening and viewing of the images was unlawful, and the trial court erred by denying his motion to suppress.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that Harrier had no privacy interest in the images obtained by Synchronoss and delivered to the police; therefore, the police’s viewing of the images was not a warrantless search.

The Court reasoned that the Fourth Amendment protects a person’s subjective and reasonable expectation of privacy. Also, the WA Constitution in article I, section 7 provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

However, the Court reasoned that if a private affair is not disturbed, then there is no Constitutional violation. Also, the Court rejected Harrier’s arguments the Private Search Doctrine prohibited the police from obtaining contraband:

“The Private Search Doctrine is based on the rationale that an individual’s reasonable expectation of privacy is destroyed when the private actor conducts his search,” said the Court of Appeals. “Our Supreme Court held in Eisfeldt that the private search doctrine is inapplicable under our State Constitution.”

The court also recognized that when a private party hands evidence over to the police, there is no privacy interest in that evidence:

“We know from the hash values that the files Synchronoss found were child pornography and that this information, the images, and the CyberTip are reliable . . . Because a private party conducted the search and the images are contraband, Harrier did not have a privacy interest in them. Thus, the police’s opening and viewing the images from a private party was not unlawful. Accordingly, Harrier’s arguments fail.” ~WA Court of Appeals.

The Court concluded that the trial court did not err by denying Harrier’s motion to suppress and affirmed Harrier’s convictions.

Please contact my office if you, a friend or family members who were arrested after police obtained incriminating evidence from a questionable search of their phone records and/or cyber account information. Hiring an experienced criminal defense attorney is the first and best step towards justice.