Virtually Uncertain: The Fourth Amendment and Laptops in United States v. Lichtenberger
Volume 89, No. 4, Summer 2017
By Thomas W. Nardi, Jr. [PDF]

This Note explores a circuit split regarding the application of the private search doctrine to laptops and other electronic storage devices. The Fifth and Seventh Circuits have found a broad private search exception, holding that once a private searcher has examined at least some of the files on an electronic storage device, the government can use any information found on any part of the device. Similarly, although not as directly on point, the Ninth Circuit has ruled that once a private searcher views a thumbnail image, any expectation of privacy in the enlarged image is frustrated. In contrast, the Sixth Circuit found the private search exception to be much narrower, holding that government agents can only view the specific files that a private searcher initially viewed.

This Note evaluates this circuit split created by the Sixth Circuit in United States v. Lichtenberger and argues that the Supreme Court should uphold the Sixth Circuit’s narrow ruling. Given the original intent of the Fourth Amendment and the private search doctrine, the Court should hold that government agents can only view what they are “virtually certain” is the same incriminating evidence already discovered by a private party.

Thomas W. Nardi, Jr., received his J.D. from Temple University Beasley School of Law in 2017.

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