N.D.Cal.: TOS agreement didn’t create an objective reasonable expectation of privacy

There is no reasonable expectation of privacy in one’s IP address from discovery by the government. Here, it was by the use of a packet sniffer. Also, the software’s terms of service might create a subjective expectation of privacy, but they wouldn’t create one that society would find was reasonable. United States v. Hagood, 2014 U.S. Dist. LEXIS 88076 (N.D. Cal. June 26, 2014):

In this case, defendant does not challenge the FBI’s discovery of the content of the images on the Gigatribe account, but instead challenges a particular aspect of the FBI’s investigation: its use of a packet sniffer called Commview to uncover defendant’s IP address. Defendant argues that “[a]lthough Mr. Hagood granted his ‘friends’ access to the content of his files, he did not grant access to his IP address or other identifying information. On the contrary, he relied upon GigaTribe’s assurance that such information would not be disclosed to anyone absent a valid court order.”

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Although GigaTribe’s privacy policy may support defendant’s subjective expectation of privacy, it does not support any legitimate, objective expectation. As a general matter courts have not recognized any reasonable expectation of privacy in an IP address. See, e.g., United States v. Forrester, 512 F.3d 500, 509-10 (9th Cir. 2008) (analogizing IP addresses to the outside of a letter, and the monitoring of an IP address to a pen register).

In this case, defendant’s specific complaint is that the government circumvented his expectation that his IP address would only be viewed by Gigatribe. This is not persuasive for at least two reasons. First, GigaTribe’s policies do not actually promise to keep IP addresses a secret, they only promise to take “appropriate organizational and technical measures” to protect data about users. Dkt. No. 31-2 at ¶ 4. Second, GigaTribe’s policies also state that “You acknowledge and agree to use the GigaTribe software solely for lawful purposes. In this respect, you may not: (a) download, or provide access to, any content protected by copyright laws, (b) exchange illegal content (racist or pedophilic materials, for example). Any account that violates these rules will be terminated.” Dkt. No. 33-1 (GigaTribe End User License Agreement) at pg. 17 ¶ 7.4. In fact GigaTribe states that illegal use may be reported to local authorities. Id. at pg. 19 (GigaTribe FAQ). Thus, any expectation that defendant had in GigaTribe’s security was both tenuous and misguided. Defendant’s use of the GigaTribe software for illegal purposes removed any legitimate, reasonable expectation of privacy that he may have enjoyed.