No. 14-5123
Page 10
Huff, et al. v. Spaw
Exposure need not be deliberate and instead can be the inadvertent product of neglect.
Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he
would lose his reasonable expectation of privacy with respect to a viewer looking into the
window from outside of his property. People v. Wright, 242 N.E. 2d 180, 184 (Ill. 1968); see
also California v. Ciraolo, 476 U.S. 207, 214–15 (1980) (holding that policemen who observed
the inside of a defendant’s fenced-in property from a location that was open to the public did not
violate the defendant’s reasonable expectation of privacy). The doctrine applies to auditory as
well as visual information. United States v. Fisch, 474 F.2d 1071, 1077 (9th Cir.), cert. denied,
412 U.S. 921 (1973) (holding that defendants did not exhibit an expectation of privacy to
statements that were “audible to the naked ear” of police in an adjoining hotel room).
The Supreme Court limited the plain-view doctrine in Kyllo v. United States, holding that
a drug grower did not “expose” heat emanating from his home by failing to take steps to prevent
police from using thermal-imaging technology that was not in general public use to observe his
in-home activities. 533 U.S. 27, 40 (2001). However, Kyllo would not apply where a person
inadvertently
broadcasts
an
activity
to
outsiders
through
commonly
available
telecommunications technology that he controls—for instance, if a drug grower advertises his
illegal in-home activities to police by inadvertently leaving on his webcam.5 Similarly, a person
exposes his activities and statements, thereby failing to exhibit an expectation of privacy, if he
inadvertently shares his activities and statements through neglectful use of a common
telecommunication device.
In United States v. Ganoe, a law-enforcement agent discovered the defendant’s childpornography files via LimeWire, a peer-to-peer file-sharing program that the defendant had
installed on his computer. 538 F.3d 1117 (9th Cir. 2008). The defendant moved to suppress the
child-pornography evidence as being the fruit of a warrantless search, in violation of the Fourth
Amendment. The Ninth Circuit disagreed, holding that the defendant “failed to demonstrate an
expectation of privacy that society is prepared to accept as reasonable” because “he opened up
his download folder to the world.” Id. at 1127 (emphasis added).
5
Importantly, LimeWire
Nor would a person have a private right of action under Title III against third parties if he inadvertently
used a webcam to broadcast his in-home activities to those third parties. See, e.g., AMERICAN PIE (Universal
Pictures 1999).
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