LA1: No REP in ISP subscriber information under 4A or LA constitution [with observation]

There is no reasonable expectation of privacy in ISP information sufficient to require a search warrant under Fourth Amendment. NJ’s Reid case is not followed under state constitution either. State v. Leblanc, 2014 La. App. LEXIS 235 (La. App. 1 Cir. February 4, 2014)*:

As support for his contention that an individual has a reasonable expectation of privacy in customer information held by an ISP, defendant cites the New Jersey case of State v. Reid, 194 N.J. 386, 945 A.2d 26 (N.J. 2008). In Reid, 945 A.2d at 28, the New Jersey Supreme Court addressed this issue squarely and found that, under the New Jersey Constitution, citizens have a reasonable expectation of privacy in their internet subscriber information on file with an ISP. The Reid court noted that although such an expectation of privacy had not been recognized in federal case law, New Jersey’s Constitution provides more protection than federal law affords. In doing so, the court pointed out that a New Jersey citizen has a reasonable expectation of privacy in his bank and telephone billing records even though these rights have not been recognized under federal law. See Reid, 945 A.2d at 32-33. In ultimately holding that an internet user has a privacy interest in the subscriber information he provides to an ISP, the Reid court reasoned that disclosure to a third-party provider does not upend the privacy interest at stake under New Jersey law. See Reid, 945 A.2d at 33. The court stated that users make such disclosures to ISPs for the limited goal of using the subscribed-to technology and not to promote the release of personal information to others. Id.

However, we do not find persuasive defendant’s argument that the Reid case from New Jersey should itself compel this court to require a search warrant in order to obtain ISP subscriber information. We note that, in Reid, the subscriber information was provided to law enforcement authorities in response to what the New Jersey Supreme Court termed a “defective municipal subpoena.” Reid, 945 A.2d at 37. The Reid court did not go so far as to say that the privacy interest a person holds in his subscriber information required a search warrant for its disclosure. Instead, the court stated that law enforcement officials could satisfy the protection of the right to privacy in this instance by serving a grand jury subpoena on an ISP without notice to the subscriber. Reid, 945 A.2d at 38. The court even stated that, in that case, the state could seek to reacquire the same subscriber information with a proper grand jury subpoena. Id. Therefore, Reid does not strongly support defendant’s argument for suppression of the evidence recovered pursuant to the search warrant, which was issued after the state received defendant’s subscriber information in response to an Article 66 subpoena.

Observation: In my experience, even if there was a reasonable expectation of privacy in ISP subscriber information, a search warrant would easily issue. The question is probable cause, and it isn’t that high a threshold. In all the CP cases I’ve had or reviewed for others, there was plenty of probable cause that child pornography was associated with that IP address by the time the ISP information was sought, and that, at best, would narrow down the search to a house, maybe two or three if a wireless unprotected router were involved. Still, that’s probable cause. Still, there would be probable cause for the warrant to issue as to the subscriber, even if there was a wireless router. In most of the cases I’ve seen, the house was checked for an unprotected wireless router before the warrant issues to narrow it more. Bottom line: The first defendant who wins on this issue, if anybody ever does, like in Reid, will be the only beneficiary because the police will only start getting search warrants for the ISP information and they will almost always be issued.

If somebody wins on this issue, it will be when third party information becomes protected [see Chapter 5 of the Treatise], if that ever happens. But still, few people will escape prosecution even if that happens.