Subscriber Does Not Have Fourth Amendment Privacy Interest In Own IP Data

Richard Raysman is a Partner in our New York office.

In 2012, the Supreme Court decided the case of United States v. Jones, 132 S. Ct. 945 (2012). Jones involved the government's use of a GPS tracking device on a vehicle and the information gleaned therefrom. The holding was that the defendant could suppress the evidence based on the Fourth Amendment's prohibition against "unreasonable searches and seizures;" because the GPS was placed on the underside of the defendant's car while on his property. Two separate concurring opinions, written by Justices Sotomayor and Alito, each observed that technology had advanced to the point where "electronic or other novel modes of surveillance" are not contingent on a physical invasion of property. Additionally, each observed that individuals may now have a reasonable expectation of privacy under the Fourth Amendment, if only because people now reveal a "great deal" of information about themselves while undertaking "mundane tasks." A recent case in the Eighth Circuit involved an attempt to extrapolate these concurrences into a viable argument that personal data necessary to use the Internet, as well as identifying data intrinsically associated with said use, contained a "reasonable expectation of privacy" even if it was disclosed to a third party. See United States v. Wheelock, No. 14-1504 (8th Cir. 2014). As detailed below, this argument was unsuccessful.

Facts

A member of the Minneapolis Police Department, Officer Dale Hanson, learned that child pornography was available for download from a certain Internet Protocol (IP) address with Comcast as the Internet Service Provider (ISP). After Hanson was granted an administrative subpoena by the county attorney, he submitted the subpoena to Comcast as the ISP in order to learn the subscriber information associated with the IP address. Comcast provided information, including name and address, to Hanson showing that the IP address was associated with defendant Guy Edward Wheelock.

Utilizing the information identifying Wheelock, Hanson obtained a search warrant and its execution yielded several devices containing child pornography and a computer actively downloading suspected child pornography files via a peer-to-peer file sharing program.

Wheelock was then charged with "possessing, receiving, and attempting to distribute child pornography" in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1) and (b)(2). At the trial court, Wheelock argued that all evidence...