D.Minn.: Jones provides no relief from administrative subpoena for ISP info

Under Minnesota law, defendant’s cable internet provider had to provide subscriber information on an administrative subpoena, and U.S. v. Jones doesn’t provide any relief. United States v. Wheelock, 2013 U.S. Dist. LEXIS 150246 (D. Minn. September 13, 2013):

Here, Comcast provided information, including Defendant’s name and physical address, to law enforcement pursuant to an administrative subpoena. Officer Hanson’s administrative subpoena requested personally identifiable information as allowed by § 325M.03, and his request included a certification “that the requested records [were] relevant to an ongoing, legitimate law enforcement investigation of Distribution of Child Pornography,” (Gov’t Exs. 1-A, 2-A, 3-A, 4-A), as required my Minnesota law. See Minn. Stat. § 388.23. An assistant county attorney reviewed and signed each of the requests seeking specific information from Comcast, Defendant’s ISP. … The administrative subpoenas at issue were all issued under the laws of Minnesota, and therefore, § 325.03 required Comcast to provide the requested information. This disclosure requirement defeats any argument that the statute creates an expectation of privacy. Accordingly, the Court determines that Minnesota’s Internet Privacy Statute does not create an objectively reasonable expectation of privacy in such information.

b. Defendant’s Reliance on United States v. Jones is Unfounded

Defendant also argues that the concurring opinionsFN1 of five members of the Supreme Court in United States v. Jones, 132 S. Ct. 945 (2012), bolster his argument that § 325M creates an objectively reasonable expectation of privacy. Jones, however, is inapplicable to the instant case. There, the Court held that a physical trespass for the purpose of gathering information constitutes a Fourth Amendment search, id. at 952, but specifically avoided what effect its decision might have on “some future case where a classic trespassory search is not involved.” Id. at 953. In doing so, the Court made clear that “the Katz reasonable-expectation test has been added to, not substituted for, the common-law trespassory test.” Id. at 952.

1 Defendant relies on Justice Sotomayor’s concurring opinion, United States v. Jones, 132 S. Ct. 945, 954 (2012), and Justice Alito’s opinion concurring in the judgment, id. at 957, which was joined by Justices Ginsburg, Breyer, and Kagan.

Defendant relies on a statement in Justice Alito’s concurring opinion that, “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative,” id. at 964, to argue that this Court should give great weight to an expectation of privacy created by Minn. Stat. § 325M. To argue that the third-party disclosure doctrine should not be followed in this case, Defendant also relies on a statement in Justice Sotomayor’s concurring opinion that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” id. at 957.

As set forth above, however, § 325M does not create an objectively reasonable expectation of privacy. The statute requires disclosure of personal identifying information in response to a subpoena. Such a requirement belies a determination that any expectation of privacy in the same information is objectively reasonable. More fundamentally, the concurring opinions of Justices Alito and Sotomayor are just that—concurring opinions. This Court reads Jones to stand for the proposition that a physical trespass for the purpose of gathering information constitutes a Fourth Amendment search and therefore requires a warrant. Whether the third-party disclosure doctrine or technology may someday change the “hypothetical reasonable person[‘s] … well-developed and stable set of privacy expectations,” id. at 962 (Alito, J., concurring in the judgment), is best left for “some future case where a classic trespassory search is not involved.” Id. at 953.