There is no Fourth Amendment privacy in the GPS metadata attached to a child pornography photograph posted on a website. GPS coordinates in the metadata led to defendant\u2019s house. United States v. Post, 2014 U.S. Dist. LEXIS 11663 (S.D. Tex. January 30, 2014):<\/p>\n
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Child pornography was uploaded to a website. Federal agents obtained the image from the website and used its metadata to identify the GPS coordinates where the photo had been taken with an iPhone. That metadata led the agents to the home of Defendant Donald Post, who then admitted to taking that photo, as well as others, of a four-year-old girl who had recently stayed at his home. Post now contends that even though he had uploaded the image to a website, he retained a privacy interest in that image’s metadata that law enforcement invaded in violation of his Fourth Amendment rights.<\/p>\n
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Post’s attempt to carve out the metadata from his public release of the image finds no support in the text of the Fourth Amendment or the case law applying it. The Fourth Amendment protects privacy interests in places and things. The Reasonableness Clause refers to the “right of the people to be secure in their persons, houses, papers, and effects.” U.S. Const. amend. IV (emphasis added). The Warrants Clause requires a particular description of “the place to be searched, and the persons or things to be seized.” Id.; see also Florida v. Jardines, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013) (“The Fourth Amendment ‘indicates with some precision the places and things encompassed by its protections’: persons, houses, papers, and effects.” (citing Oliver v. United States, 466 U.S. 170, 176, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984))). The “effect” or “thing” in this case is the electronic image Post took on his iPhone. He gave up his right to privacy in that image once he uploaded it to the internet, and that thing he publicly disclosed contained the GPS coordinates that led agents to his home. There is no basis for divvying up the image Post uploaded into portions that are now public and portions in which he retains a privacy interest.<\/p>\n
The application of the Fourth Amendment to modern technology can present novel issues. See, e.g., Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (determining whether use of a thermal imaging device to monitor heat radiating from person’s home was a search). But other times traditional Fourth Amendment principles provide a straightforward answer once the veneer of technological complexity is removed. See Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1007 (2010) (“Technology neutrality assumes that the degree of privacy the Fourth Amendment extends to the Internet should try to match the degree of privacy protection that the Fourth Amendment provides in the physical world. That is, courts should try to apply the Fourth Amendment in a new environment in ways that roughly replicate the role of the Fourth Amendment in the traditional physical setting.”). The latter characterizes Post’s arguments that a Fourth Amendment violation occurred because he lacked knowledge that the photo he disclosed contained metadata and because he retained an interest in the anonymity of the image.<\/p>\n
A hypothetical based on a technology that was novel and revolutionary not that long ago but that is now widespread\u2014DNA\u2014dispels both of these arguments. Assume a defendant left an article of his clothing at a crime scene in 1981. At the time, the defendant had no idea that years later crime labs would be able to conduct DNA analysis of hairs present on that clothing. And in leaving the clothing, he certainly intended to do so “anonymously.” On those grounds, would the defendant be able to suppress the results of the DNA analysis? Of course not, because he left the clothing in a public place and lost any expectation of privacy he had in it, regardless of how he contemplated that clothing could be used. The same would have been true if in an earlier age a defendant had tried to argue that he meant to leave a cigarette butt in a public space, but had not intended to leave his latent fingerprint that law enforcement used to identify him. And the same is true for the image that Post uploaded to the website: once it was left in a public place, he no longer had a Fourth Amendment privacy interest in it. Cf. United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (holding that ineffectual attempt to prevent peer-sharing website from sharing his files did not give defendant an expectation of privacy because his files “were still entirely exposed to public view”).<\/p>\n
It is worth mentioning that this case does not implicate two Fourth Amendment issues that are currently receiving significant attention. Two district courts recently handed down conflicting opinions concerning the constitutionality of the National Security Agency’s bulk collection of telephone metadata. Compare Klayman v. Obama, ___ F. Supp. 2d ___, 2013 U.S. Dist. LEXIS 176925, 2013 WL 6571596 (D.D.C. Dec. 16, 2013) (finding Fourth Amendment violation), with Am. Civil Liberties Union v. Clapper, ___ F. Supp. 2d ___, 2013 U.S. Dist. LEXIS 180863, 2013 WL 6819708 (S.D.N.Y. Dec. 27, 2013) (finding same metadata collection program constitutional). Whatever the ultimate outcome of that issue in higher courts, whether an individual lacks a privacy interest in dialed numbers because those numbers are necessarily disclosed to his phone company is a much different question than whether an individual loses his privacy interest in an item because he voluntarily makes it publicly available on the internet.3 Second, earlier this month the Supreme Court decided to resolve a split in the lower courts concerning whether the search incident to arrest doctrine that allows law enforcement to seize the cellphone of an arrestee also allows a warrantless search of the seized phone. See United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), cert. granted, 2014 U.S. LEXIS 650, 2013 WL 4402108 (U.S. Jan. 17, 2014); People v. Riley, 2013 Cal. App. Unpub. LEXIS 1033, 2013 WL 475242 (Cal. Ct. App. 2013), cert. granted, 2014 U.S. LEXIS 648, 2013 WL 3938997 (U.S. Jan. 17, 2014). At first glance it might seem that the courts recognizing a distinction between seizing the phone and searching its contents lend support to Post’s attempts to divvy up his privacy interests in the photo. But the cases the Supreme Court is reviewing are not about whether an arrestee has a privacy interest in a cellphone found in his possession. He maintains such an interest in both the phone and its contents. The issue is whether the justifications that overcome that privacy interest and allow for warrantless seizure of the phone also support warrantless search of its contents. Post, by contrast, had no cognizable privacy interest that the government needed to overcome to justify searching for metadata in the photo he placed on the internet.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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