Post details: CA4: No reasonable expectation of privacy in subscriber info with ISP

05/10/10

Permalink 12:05:23 am, by fourth, 419 words, 2179 views   English (US)
Categories: General

CA4: No reasonable expectation of privacy in subscriber info with ISP

An FBI Agent trolling in a Yahoo! child pornography chat room was able to tell that "markie_zkidluv6" had uploaded child porn. An administrative subpoena was served on Yahoo! for the subscriber information, and information was used to get a search warrant for Bynum's a/k/a "markie_zkidluv6"'s house. There manifestly is no reasonable expectation of privacy in one's subscriber information with an internet service provider. Also minor date discrepancies in the affidavit for the search warrant were not material to the finding of probable cause from the fact of the uploads to his IP address. United States v. Bynum, 604 F.3d 161 (4th Cir. May 5, 2010), certiorari denied 2010 U.S. LEXIS 4928 (U.S. June 14, 2010):

First, Bynum contends that the Government’s use of "secret" administrative subpoenas violated his Fourth Amendment rights. He offers no case law supporting this theory, and we have found none. "The ‘touchstone’ of Fourth Amendment analysis is whether the individual has a reasonable expectation of privacy in the area searched ...." [United States v. Breza, 308 F.3d 430,] at 433 (quoting Oliver v. United States, 466 U.S. 170, 177 (1984)). In order to demonstrate a legitimate expectation of privacy, Bynum "must have a subjective expectation of privacy, and ... that subjective expectation must be reasonable." United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997).

In this case, Bynum can point to no evidence that he had a subjective expectation of privacy in his internet and phone "subscriber information"—i.e., his name, email address, telephone number, and physical address—which the Government obtained through the administrative subpoenas. Bynum voluntarily conveyed all this information to his internet and phone companies. In so doing, Bynum "assumed the risk that th[os]e compan[ies] would reveal [that information] to police." Smith v. Maryland, 442 U.S. 735, 744 (1979). Moreover, Bynum deliberately chose a screen name derived from his first name, compare "markie_zkidluv6" with "Marques," and voluntarily posted his photo, location, sex, and age on his Yahoo profile page.

Even if Bynum could show that he had a subjective expectation of privacy in his subscriber information, such an expectation would not be objectively reasonable. Indeed, "[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation." United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (collecting cases).

No case yet disagrees, and, in light of Smith v. Maryland, there won't be soon. The opinion does not reveal how the issue was presented to see if SCOTUS will be asked for review.

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