United States v. Gorshkov, 2001 WL 1024026, U.S. Dist. LEXIS 26306 (W.D. Wash. 2001).
Around June 2000, the FBI set up Invita, a sting operation posing as a computer security company in Seattle, Washington. Defendant Vasiliy Gorshkov and Mr. Alexey Ivanov flew from Russia to Seattle. Both men met with undercover FBI agents at the Invita office. During the meeting, Gorshkov used an FBI laptop computer to demonstrate his computer hacking and computer security skills. He also accessed his computer system in Russia. After the meeting, both men were arrested.
Following the arrest and without Gorshkov's knowledge or consent, the FBI searches and seized the laptop and all the keystrokes made by Gorshkov by means of a sniffer program. The FBI then obtained Gorshkov's username and password that he had used to access the Russian computer. Using the login information, the FBI logged onto Defendant's computer system in Russia and downloaded the file contents of the computer(s) without a warrant. The FBI downloaded and copied the files prior to the warrant being applied for and obtained on December 1, 2000.
Appellate Court Proceedings
The Court stated that the defendant must meet the two-part test to establish an expectation of privacy:
- the Defendant must have an actual subjective expectation of privacy; and
- that expectation is one that society is prepared to recognize as reasonable.
The Court found that the defendant could not have had an actual expectation of privacy in a private computer network belonging to a U.S. company, Invita, and a computer that was not his. In addition, the defendant knew that the systems administrator could and likely would monitor his activities over Invita's network. The agents also told defendant that they wanted to watch him and see what he was capable of doing, and they were frequently standing and looking over his shoulder. Moreover, the sole purpose of using the computer was to demonstrate his hacking ability for the Invita personnel to review. Therefore, the Court found that the defendant had no reasonable expectation of privacy in his actions on the Invita computer.
In addition, the court held that the Fourth Amendment does not apply to the agents' extraterritorial access to computers in Russia and their copying of data because the computers were property of a non-resident and located outside the territory of the United States. The Fourth Amendment does not apply to a search or seizure of a non-resident alien's property outside the territory of the United States. The computers accessed by the agents were in Russia, which is outside the territory of the United States. Also, until the copied data was transmitted to the United States, it was also outside the territory of the United States.
The court also held that the act of copying the data on the Russian computers was not a seizure under the Fourth Amendment since it did not interfere with the defendant's (or anyone else's) possessory interest in the data.
Additionally, the FBI's actions were reasonable under the exigent circumstances. The court had held in Illinois v. MacArthur that an unlawful temporary seizure (if the seizure had been found to be unlawful) supported by probable cause and designed to prevent the loss of evidence while police obtain a warrant in a reasonable period of time. Here the agents had a good reason to fear that coconspirators would and could destroy evidence, or make it unavailable before assistance could be obtained by Russian authorities since electronic data and evidence can be moved to a different computer with ease, or access to it could be prevented with a mere change of password or pull of the power plug.