Defendant’s use of IP addresses his computer signed in through isn’t enough like CSLI in Carpenter to require a search warrant. United States v. Monroe, 2018 U.S. Dist. LEXIS 186998 (D. R.I. Nov. 1, 2018):
B. Does Carpenter v. United States Require the Government to Obtain a Warrant to Compel the Disclosure of IP Addresses?
Monroe also argues that this Court should apply the reasoning articulated in Carpenter v. United States, 138 S. Ct. 2206 (2018), to find that the Constitution requires the Government to obtain a warrant supported by probable cause to compel the disclosure of an IP address. (Def.’s Supp. Mem. 3-9.) The Court is unpersuaded, however, that the Government’s acquisition of a defendant’s historical cell site location information (“CSLI”) from a third party is analogous to the circumstances here.
In Carpenter, the Supreme Court considered whether an individual maintained a legitimate expectation of privacy under the Fourth Amendment in the extensive record of his physical movements captured by wireless carriers through CSLI. See 138 S. Ct. at 2219. In answering “yes,” the Court focused on the unique nature of CSLI. “A cell phone,” Chief Justice Roberts wrote, is “almost a ‘feature of human anatomy.'” Id. at 2218 (quoting Riley v. California, 134 S. Ct. 2473, 2484 (2014)). CSLI “tracks nearly exactly the movement of [a cell phone’s] owner,” enabling the Government to obtain “near perfect surveillance” in both public and private locales “as if it had attached an ankle monitor to the phone’s user.” Id.
The FSS’s record of Monroe’s IP address was not an “exhaustive chronicle” of his physical or digital activities. See id. at 2219. Although an IP address is a unique numerical identifier, see United States v. Kearney, 672 F.3d 81, 84 n.1 (1st Cir. 2012), it can only provide “the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones.” In re BitTorrent Adult Film Copy-right Infringement Cases, 296 F.R.D. 80, 84 (E.D.N.Y. 2012). It does not, in and of itself, reveal a particular user’s identity or the content of the user’s communications. Indeed, a “subscriber to whom a certain IP address was assigned may not be the same person who used the Internet connection for illicit purposes.” SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011). More investigation is required to establish such facts. This understanding is consistent with the additional steps taken by the Government to tie Monroe to the illicit video files, including determining the internet service provider that owned the IP address, subpoenaing the provider’s subscriber information, and conducting additional surveillance. (Richardson Aff. ¶¶ 17-24, 28-29.)
An IP address is one link held by a third party in a chain of information that may lead to a particular person. It does not reveal the kind of minutely detailed, historical portrait of “the whole of [a person’s] physical movements” that concerned the Supreme Court in Carpenter, 138 S. Ct. at 2219. This information is more akin to the records of dialed numbers kept by a telephone company. See United States v. Tolbert, 326 F. Supp. 3d 1211, 1225 (D.N.M. July 27, 2018) (comparing “identifying data” in IP address to telephone and bank records and finding such data did not “rise to the level of the evidence in Carpenter”). Individuals have no reasonable expectation of privacy in such records. See Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (no protected privacy interest in telephone records of numbers dialed); United States v. Miller, 425 U.S. 435, 440-41 (1976) (no protected privacy interest in bank records). The Carpenter Court expressly declined to disturb those rulings. 138 S. Ct. at 2220. The § 2703(d) orders therefore were sufficient to compel the FSS to disclose Monroe’s IP address.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)