WI: REP in Cloud storage of data from warrantless search

A public employee’s Dropbox account was searched without a warrant by seeking to enter by his user name and changing the password. There is a reasonable expectation of privacy in Cloud storage of digital data when one does not share access. The state leading case on the expectation is Dumstrey, and the factors of reasonable expectation of privacy all favor defendant. Cloud storage is clearly analogous to a closed container, and a warrant would usually be needed for that. The trial court properly granted the motion to suppress. State v. Bowers, 2022 Wisc. App. LEXIS 1178 (Dec. 29, 2022):

¶19 On the second question–whether the defendant’s expectation of privacy was objectively reasonable–we consider the factors outlined in State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502. See State v. Baric, 2018 WI App 63, ¶18, 384 Wis. 2d 359, 919 N.W.2d 221. Those factors include:

(1) whether the defendant had a property interest in the premises; (2) whether he [or she] was legitimately (lawfully) on the premises; (3) whether he [or she] had complete dominion and control and the right to exclude others; (4) whether he [or she] took precautions customarily taken by those seeking privacy; (5) whether he [or she] put the property to some private use; and (6) whether the claim of privacy is consistent with historical notions of privacy.

Id. (alterations in original; citation omitted). “Although these factors guide our analysis, they are not controlling,” and “[w]e consider the totality of the circumstances in determining whether an individual has a reasonable expectation of privacy.” Id.; see also Guard, 338 Wis. 2d 385, ¶17. As relevant to the issue in this case, “the reasonableness of an expectation of privacy in digital files shared on electronic platforms is determined by considering the same factors as in any other Fourth Amendment context.” See Baric, 384 Wis. 2d 359, ¶19.