The third party doctrine after Carpenter does not make IP addresses and subscriber information protected by the Fourth Amendment or the state constitution. State v. Mixon, 2021 Ariz. LEXIS 3 (Jan. 11, 2021):
¶1 We consider whether the Fourth Amendment to the United States Constitution or article 2, section 8 of the Arizona Constitution requires law enforcement officials to secure a judicially-authorized search warrant or order to obtain either (1) a user’s Internet Protocol (“IP”) address or (2) subscriber information the user voluntarily provides to an Internet Service Provider (“ISP”) as a condition or attribute of service. We hold that neither the federal nor the Arizona Constitution requires a search warrant or court order for such information and that law enforcement officials may obtain IP addresses and ISP subscriber information with a lawful federal administrative subpoena.
. . .
¶18 As with bank records and dialed telephone numbers, an internet user voluntarily provides subscriber information and IP addresses to third-party ISPs and servers. Subscriber information and IP addresses also do not reveal the substance or content of the internet user’s communication any more than the information affixed to the exterior of a mailed item. See Shuntich & Vogel, supra ¶ 3, at 51 (noting that 18 U.S.C. § 2701 et seq. prohibits companies from disclosing “contents of a communication,” but they may turn over non-content information like IP addresses, phone numbers, and physical addresses in response to a subpoena); cf. Forrester, 512 F.3d at 511 (“In a line of cases dating back to the nineteenth century, the Supreme Court has held that the government cannot engage in a warrantless search of the contents of sealed mail, but can observe whatever information people put on the outside of mail, because that information is voluntarily transmitted to third parties.”).
C.
¶19 In Carpenter, decided nearly 40 years after Smith, officers accessed cellphone data, commonly known as cell-site location information (“CSLI”), to reveal a suspect’s movements over the course of 127 days. 138 S. Ct. at 2217. CSLI is generated by a cellphone whenever it receives a text, email, call, or when an app seeks to refresh data. Id. at 2220. As a result, CSLI is generated continuously without a user’s affirmative act. The Court described CSLI evidence as “detailed, encyclopedic, and effortlessly compiled,” id. at 2216, and noted that it “tracks nearly exactly the movements of its owner,” allowing the government to achieve “near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” id. at 2218. Concerned that CSLI could be used to continuously and effortlessly surveil cell phone users, the Court created a “narrow” exception to the third-party doctrine, requiring the government to obtain a search warrant for CSLI. Id. at 2220. The Court emphasized that a “detailed chronicle of a person’s physical presence compiled every day, every moment, over several years” implicated privacy concerns far exceeding those in Smith and Miller. Id.
¶20 Following Carpenter, every federal appellate court addressing the issue has affirmed that the Fourth Amendment’s warrant requirement does not reach IP addresses and ISP subscriber information. See, e.g., United States v. Hood, 920 F.3d 87, 92 (1st Cir. 2019) (holding that IP addresses are subject to the third-party doctrine and fall outside the scope of Carpenter); United States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018) (ruling that, postCarpenter, ISP subscriber information “falls comfortably within the scope of the third-party doctrine”); see also United States v. Wellbeloved-Stone, 777 F. App’x 605, 607 (4th Cir. 2019) (declining to revisit Bynum’s holding that subscriber information was not protected by the Fourth Amendment in light of Carpenter); United States v. VanDyck, 776 F. App’x 495, 496 (9th Cir. 2019) (declining to revisit Forrester’s holding that IP addresses and ISP subscriber information are not protected by the Fourth Amendment in light of Carpenter).
¶21 Although this Court is not bound by federal appellate courts’ interpretations of federal constitutional provisions, see State v. Montano, 206 Ariz. 296, 297 ¶ 1 n.1 (2003), we may embrace them to “further predictability and stability of the law.” See Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 533 ¶ 9 (2003). Here, because the federal appellate courts’ jurisprudence is uniform and sound, we decline to depart from it.
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)