N.D.Ind.: Def’s claim the warrant for his Facebook account is akin to Carpenter and CSLI fails as completely speculative and an admitted “guess”

United States v. Cox, 2020 U.S. Dist. LEXIS 97326 (N.D. Ind. June 3, 2020):

Defendant also overstates the precision of the information gathered from the Records. Defendant’s characterization of the Records as providing his “exact location” is, as the Seventh Circuit has recognized, an “unhelpful exaggeration.” Id. at 808. Rather, “the IP address data that the government acquired from [Facebook] 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.” Hood, 920 F.3d at 92. As the Government correctly notes, that string of numbers means nothing without additional investigation, including but not limited to gathering specific user and location information from an internet service provider. (ECF No. 137 at 11, n. 5). While this fact is not necessarily determinative, see Kidd, 394 F.Supp.3d at 365-66, it does weigh against finding that the Records act as a tracking device.

The legal issues aside, Defendant’s motion fails for a more fundamental reason. All the information contained in Defendant’s filings regarding the Records, their contents, and the ability of the Government to use the Records for tracking purposes comes solely from Defendant. Throughout his filings, Defendant makes hyperbolic statements like the Records reveal his “exact location” (ECF No. 133 at 5); that they create “a detailed chronicle of [his] physical presence” (Id. at 6); that they provide “an intimate window into a person’s life” (Id.); that the Records are “distinctly more comprehensive than the typical IP logs” (ECF No. 138 at 5); and that the cookie data is like “the names and account numbers of every person who used a particular ATM” (Id. at 9). However, Defendant has no expert to opine on the extent of the Records, nor does he provide any other admissible evidence regarding their nature or potential use. The Court has not even been provided with the Records or any part thereof. Since Defendant has the burden of establishing his reasonable expectation of privacy, see Kidd, 394 F.Supp.3d 357 at 366, this lack of evidence is fatal to the motion.

Moreover, Defendant consistently undermines any credibility his pronouncements might have. Defendant compares the Records to CSLI data throughout his filings but admits in his reply that he has “never seen CSLI data.” (ECF No. 138). Defendant argues that Facebook is ubiquitous but admits that he had done no research on the breadth of Facebook usage and further admits that his representations in this regard are a “guess.” (ECF No. 133 at 2-3). Defendant portrays the information gathered by Facebook as being significantly more intrusive than other companies, but ultimately is forced to admit simply that he knows of no other company that records and reports such data. (ECF No. 138 at 8). The Court would not be inclined to take a party’s word for any determinative proposition and is much less inclined to do so when the party has made clear that his word is based on little more than guess and speculation.

And even if Defendant’s hyperbole was accurate generally, he makes no attempt to demonstrate that it is accurate with respect to this case. Take, for instance, Defendant’s assertion that the cookie data can reveal the online activity of third parties. (Id. at 9). Did that happen in this case? The Court has reviewed the filings of both Defendant and the Government and finds no evidence that it did. Perhaps more to the point, Defendant has not so much as designated a single instance where the Government was able to determine his location from the Records. This Court’s Fourth Amendment analysis is not driven by what might be possible or what could have happened. Instead, this Court must undertake a “fact-specific inquiry.” United States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009). Defendant has told the Court nothing about the evidence adduced from the Records, giving the Court no ability to meaningfully analyze whether that evidence should be stricken.

The evolution of technology may one day change the analysis on this issue. Carpenter was not decided until 2018, nearly two decades after cell phones had achieved widespread adoption. We may one day wake up and find that Facebook or some other social network has become as indispensable as the cell phone and determine, as a society, that the information collected is deserving of constitutional protection. But that day is not today, and this case is not that case. On the basis of the record before the Court, the Records “fall[] comfortably within the scope of the third-party doctrine” which continues, even after Carpenter, to apply to “business records that might incidentally reveal location information.” United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018). As such, Defendant had no reasonable expectation of privacy in the Records, and no Fourth Amendment violation occurred.

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