E.D.Va.: Twitter subscriber information has no REP

Twitter account information was not subject to a reasonable expectation of privacy in an order for information under 18 U.S.C. § 2703, and the motion to reconsider the government getting access to it was denied. A First Amendment free association claim was also denied. In re § 2703 Order, 787 F. Supp. 2d 430 (E.D. Va. 2011), objection overruled 2011 U.S. Dist. LEXIS 130171 (E.D. Va., Nov. 10, 2011):

The Twitter Order does not demand the contents of any communication, and thus constitutes only a request for records under § 2703(c). Even though the Twitter Order seeks information additional to the specific records listed in § 2703(c)— data transfer volume, source and destination Internet Protocol addresses, and [Twitter’s] correspondence and notes of records related to the accounts — these, too, are non-content “records” under § 2703(c)(1). Therefore, as the targets of mere records disclosure, petitioners may not bring a customer challenge under § 2704.

Petitioners, unable to overcome the language of § 2704, assert in reply that they have standing based on general due process, but cite no authority on point. Moreover, § 2704 seems to recognize that only targets of content disclosures would have a viable constitutional challenge to the compelled disclosure of private communications. Customers who voluntarily provide non-content records to an internet service provider would not enjoy the same level of protection.

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With these principles in mind, the Fourth Circuit has held that no legitimate expectation of privacy exists in subscriber information voluntarily conveyed to phone and internet companies. United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (citing Smith v. Maryland, 442 U.S. at 744). …

Here, petitioners have no Fourth Amendment privacy interest in their IP addresses. The Court rejects petitioners’ characterization that IP addresses and location information, paired with inferences, are “intensely revealing” about the interior of their homes. The Court is aware of no authority finding that an IP address shows location with precision, let alone provides insight into a home’s interior or a user’s movements. Thus the Kyllo and Karo doctrines are inapposite. Rather, like a phone number, an IP address is a unique identifier, assigned through a service provider. Christie, 624 F.3d at 563; Smith v. Maryland, 442 U.S. at 744. Each IP address corresponds to an internet user’s individual computer. Christie, 624 F.3d at 563. When a user visits a website, the site administrator can view the IP address. Id. Similarly, petitioners in this case voluntarily conveyed their IP addresses to the Twitter website, thus exposing the information to a third party administrator, and thereby relinquishing any reasonable expectation of privacy.

In an attempt to distinguish the reasoning of Smith v. Maryland and Bynum, petitioners contend that Twitter users do not directly, visibly, or knowingly convey their IP addresses to the website, and thus maintain a legitimate privacy interest. This is inaccurate. Before creating a Twitter account, readers are notified that IP addresses are among the kinds of “Log Data” that Twitter collects, transfers, and manipulates. See Warshak, 631 F.3d 266, 2010 WL 5071766 at *13 (recognizing that internet service provider’s notice of intent to monitor subscribers’ emails diminishes expectation of privacy). Thus, because petitioners voluntarily conveyed their IP addresses to Twitter as a condition of use, they have no legitimate Fourth Amendment privacy interest. Smith, 442 U.S. at 744; Bynum, 604 F.3d at 164.