{"id":46816,"date":"2021-01-11T19:36:58","date_gmt":"2021-01-12T00:36:58","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=46816"},"modified":"2021-01-12T09:11:25","modified_gmt":"2021-01-12T14:11:25","slug":"az-third-party-doctrine-after-carpenter-doesnt-require-sw-for-ip-addresses-and-subscriber-info","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=46816","title":{"rendered":"AZ: Third party doctrine after Carpenter<\/em> doesn’t require SW for IP addresses and subscriber info"},"content":{"rendered":"\n

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<\/a>, 2021 Ariz. LEXIS 3 (Jan. 11, 2021):<\/p>\n\n\n\n\n\n\n\n

<\/p>\n\n\n\n

\u00b61 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\u2019s Internet Protocol (\u201cIP\u201d) address or (2) subscriber information the user voluntarily provides to an Internet Service Provider (\u201cISP\u201d) 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.<\/p>

. . .<\/p>

\u00b618 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\u2019s communication any more than the information affixed to the exterior of a mailed item. See Shuntich & Vogel, supra \u00b6 3, at 51 (noting that 18 U.S.C. \u00a7 2701 et seq. prohibits companies from disclosing \u201ccontents of a communication,\u201d 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 (\u201cIn 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.\u201d).<\/p>

C.<\/p>

\u00b619 In Carpenter, decided nearly 40 years after Smith, officers accessed cellphone data, commonly known as cell-site location information (\u201cCSLI\u201d), to reveal a suspect\u2019s 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\u2019s affirmative act. The Court described CSLI evidence as \u201cdetailed, encyclopedic, and effortlessly compiled,\u201d id. at 2216, and noted that it \u201ctracks nearly exactly the movements of its owner,\u201d allowing the government to achieve \u201cnear perfect surveillance, as if it had attached an ankle monitor to the phone\u2019s user,\u201d id. at 2218. Concerned that CSLI could be used to continuously and effortlessly surveil cell phone users, the Court created a \u201cnarrow\u201d exception to the third-party doctrine, requiring the government to obtain a search warrant for CSLI. Id. at 2220. The Court emphasized that a \u201cdetailed chronicle of a person\u2019s physical presence compiled every day, every moment, over several years\u201d implicated privacy concerns far exceeding those in Smith and Miller. Id.<\/p>

\u00b620 Following Carpenter, every federal appellate court addressing the issue has affirmed that the Fourth Amendment\u2019s 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 \u201cfalls comfortably within the scope of the third-party doctrine\u201d); see also United States v. Wellbeloved-Stone, 777 F. App\u2019x 605, 607 (4th Cir. 2019) (declining to revisit Bynum\u2019s holding that subscriber information was not protected by the Fourth Amendment in light of Carpenter); United States v. VanDyck, 776 F. App\u2019x 495, 496 (9th Cir. 2019) (declining to revisit Forrester\u2019s holding that IP addresses and ISP subscriber information are not protected by the Fourth Amendment in light of Carpenter).<\/p>

\u00b621 Although this Court is not bound by federal appellate courts\u2019 interpretations of federal constitutional provisions, see State v. Montano, 206 Ariz. 296, 297 \u00b6 1 n.1 (2003), we may embrace them to \u201cfurther predictability and stability of the law.\u201d See Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 533 \u00b6 9 (2003). Here, because the federal appellate courts\u2019 jurisprudence is uniform and sound, we decline to depart from it.<\/p><\/blockquote>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

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):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[125,53,79],"tags":[],"class_list":["post-46816","post","type-post","status-publish","format-standard","hentry","category-digital-privacy","category-state-constitution","category-third-party-doctrine"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/46816","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=46816"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/46816\/revisions"}],"predecessor-version":[{"id":46825,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/46816\/revisions\/46825"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=46816"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=46816"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=46816"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}