CA1: SCA emergency request for Kik app customer info didn’t implicate Carpenter concerns

The government used an emergency application for user data from the Kik app after learning that defendant was allegedly sending child pornography to children through it. The information was nowhere near the quality and intrusiveness of the information in Carpenter, and it was basically just third-party information. The motion to suppress is denied. United States v. Hood, 2019 U.S. App. LEXIS 9817 (1st Cir. Apr. 3, 2019):

But, an internet user generates the IP address data that the government acquired from Kik in this case only by making the affirmative decision to access a website or application. By contrast, as the Supreme Court noted in Carpenter, every time a cell phone receives a call, text message, or email, the cell phone pings CSLI to the nearest cell site tower without the cell phone user lifting a finger. See id. at 2220. In fact, those pings are recorded every time a cell phone application updates of its own accord, possibly to refresh a news feed or generate new weather data, id., such that even a cell phone sitting untouched in a suspect’s pocket is continually chronicling that user’s movements throughout the day.

Moreover, the IP address data that the government acquired from Kik does not itself convey any location information. The IP address data is merely a string of numbers associated with a device that had, at one time, accessed a wireless network. By contrast, CSLI itself reveals — without any independent investigation — the (at least approximate) location of the cell phone user who generates that data simply by possessing the phone. Id. at 2211-12. Thus, the government’s warrantless acquisition from Kik of the IP address data at issue here in no way gives rise to the unusual concern that the Supreme Court identified in Carpenter that, if the third-party doctrine were applied to the acquisition of months of Carpenter’s CSLI, “[o]nly the few without cell phones could escape … tireless and absolute surveillance.” Id. at 2218.

Accordingly, we conclude that Hood did not have a reasonable expectation of privacy in the information that the government acquired from Kik without a warrant. This conclusion, moreover, is in accord not only with the rulings of all the circuits that had addressed this issue before Carpenter had been decided, see United States v. Caira, 833 F.3d 803, 806-08 (7th Cir. 2016); United States v. Wheelock, 772 F.3d 825, 828-29 (8th Cir. 2014); United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010); United States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008); United States v. Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008), but also with the ruling of the one circuit that has done so in the wake of Carpenter, see United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018).

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