Owners do not have a reasonable expectation of privacy in computer IP addresses, according to a decision from the Seventh Circuit Court of Appeals. United States v. Caira is binding in Illinois and several other states, unless and until the Supreme Court of the United States rules otherwise.
Facts
Around 2008, the Drug Enforcement Agency learned that someone tried to buy sassafras oil – which is a component in ecstasy – with gslabs(at)hotmail(dot)com from a website in Vietnam. After issuing administrative subpoenas to various technology companies, including Microsoft, the DEA learned that the email address belongs to Frank Caira.
A brief aside here. In order for a judge to issue a search warrant, the prosecutor or police must demonstrate that there is probable cause to believe that a specific person is, was, or will be involved in a specific illegal activity at a certain time and at a certain place. In contrast, in order for a government agency to issue an administrative subpoena, an anonymous bureaucrat must have a well-grounded suspicion that something is amiss.
Back to the facts. The DEA’s subpoena to Microsoft requested a broad swath of information, especially including “all basic subscriber information.” In response, Microsoft turned over the owner’s IP address, among other things. The DEA used this IP address to obtain the owner’s name from Comcast. It was then a simple matter for the agency to connect that name – Anna Caira – with her husband, since he was already under indictment for federal drug crimes. Ms. Caira voluntarily provided this information to both Microsoft and Comcast, a fact which looms large later.
Moving forward, Mr. Caira moved to suppress the evidence on the grounds that the administrative subpoenas were illegal searches and seizures. The district court denied the motion and Mr. Caira pleaded guilty while reserving his right to appeal the evidentiary issue.
Decision
For an act to be a “search” under the Fourth Amendment, it must violate an individual’s expectation of privacy, and society must recognize that expectation as reasonable.
As mentioned earlier, Ms. Caira turned over personal information to the technology companies when she set up the email account. In the late 1970s, the Supreme Court decided a pair of cases (U.S. v. Miller and Smith v. Maryland) which eventually gave rise to the third party doctrine. This idea states that people have no expectation of privacy in any information that they voluntarily turn over to third parties, even if that information is only to be used for limited purposes.
Since Mr. Caira had no reasonable expectation of privacy in the IP address, the administrative subpoenas did not violate his Fourth Amendment rights.
Application
The Tenth Circuit handed down a similar decision about ten years ago (2008’s United States v. Perrine), so at first blush, it appears unlikely that the Supreme Court would review Caira. But the third party doctrine is another matter. Several appellate courts, and at least one Justice of the Supreme Court, have openly questioned this idea. Computer owners do not really “voluntarily” turn over personal information, because the technology companies will not allow access to their services without it. If the Supremes review the third party doctrine, there is an outside chance that it will be at least modified, given the Court’s current makeup.
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(image courtesy of Richard Wheeler)