No reasonable expectation of privacy in IP addresses and browser history discoverable by subpoena

There is no reasonable expectation of privacy in IP addresses and browser history discoverable by subpoena to an ISP. Also, the Stored Communications Act does not provide suppression as a remedy. United States v. Li, 2008 U.S. Dist. LEXIS 22283 (S.D. Cal. March 20, 2008):

In United States v. Smith, 155 F.3d 1051 (9th Cir. 1998), the Ninth Circuit concluded that, in light of the express remedies provided for by the SCA, see 18 U.S.C. §§ 2701 (criminal penalties), 2707 (civil damages), and the SCA’s exclusivity of remedies provision, see id. § 2708, the SCA “expressly rules out exclusion as a remedy.” Smith, 155 F.3d at 1056 (“If the voicemail message at issue is subject to the strictures of the Stored Communications Act, then suppression is not an available remedy.”); see also United States v. Ferguson, 508 F. Supp. 2d 7, 10 (D.D.C. 2007) (“Even if Defendant was correct that the Government did not comply with the SCA, the statute does not provide for a suppression remedy.”) (citations omitted); Bansal v. Russ, 513 F. Supp. 2d 264, 282 (E.D. Pa. 2007) (purpose of § 2708 is “to establish that the exclusionary rule is not a remedy provided for by the [SCA]”). Defendant seeks to distinguish Smith and Ferguson on the grounds that Smith concerned suppression pursuant to the Wiretap Act, and Ferguson involved a magistrate-issued warrant and somehow failed to distinguish Smith properly. (See Reply at 4-5.) The court finds these alleged distinctions unpersuasive and, based on the authorities discussed above, agrees with the government’s contention that suppression is not available.

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The SCA does not support the distinction Defendant wishes to draw. As noted above, § 2703(c)(2) specifically states that, when a governmental entity presents an authorized administrative subpoena, an electronic communication service provider must disclose information including, most pertinently, “records of session times and durations,” § 2703(c)(2)(C), and “subscriber number or identity, including any temporarily assigned network address,” § 2703(c)(2)(E), of a subscriber or customer. Thus, even if the SCA does create a privacy interest in some aspects of electronic communications, it clearly does not communicate to subscribers or customers that they have a reasonable expectation of privacy in their IP addresses and log-in histories. This interpretation is consistent with the holding in Forrester and reflects the important distinction between the privacy concerns implicated by disclosure of the contents of electronic communications and those implicated by disclosure of address and access data related to internet use. See Forrester, 512 F.3d at 509-11. Accordingly, the court concludes that Defendant had no reasonable expectation of privacy in her IP log-in histories and IP addressing information.

In a drug search, a weapon found is seizable under the plain view doctrine because weapons are often related to drugs. United States v. Brown, 551 F. Supp. 2d 947 (D. Ariz. 2008).*