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Subpoenas to internet service providers didn’t violate Fourth Amendment

United States v. Frank Caira, 7th Circuit Court of Appeals No. 14-1003, 2016 WL 4376472, 8/17/16

During a drug investigation the government issued subpoenas to two internet service providers—Microsoft, the owner of Hotmail, and Comcast the owner of an Internet Protocol address associated with the Hotmail address being investigated. The subpoenas provided information that led investigators to Caira. (Slip op. at 2-4). His claim that the subpoenas amounted to unreasonable warrantless searches is rejected because voluntarily sharing the information with the internet providers meant Caira had no reasonable expectation of privacy in the information.

Caira’s argument is disposed of by the “third-party doctrine,” which holds that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties … even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 442-44 (1976) (defendant had no reasonable expectation of privacy in sensitive financial information he voluntarily shared with a bank); Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (defendant had no reasonable expectation of privacy in the phone numbers he dialed from his home phone because, as a necessary step in placing phone calls, he shared that information with the phone company). Accordingly, the government’s pursuit of information shared with a third party is “not a ‘search,’ and no warrant was required.” Smith, 442 U.S. at 746.

Here, Caira shared his I.P. address with a third party—Microsoft. When he used his home computer and sent his username and password to Microsoft, he expected to see his Hotmail inbox displayed on his home computer screen. It would have done him no good if his inbox was instead displayed on the screen attached to his computer at work, or a computer at the public library, or the computer he used years earlier when first signing up for a Hotmail account. So every time he logged in, he sent Microsoft his I.P. address, specifically so that Microsoft could send back information to be displayed where Caira was physically present. So this case is controlled by Miller and Smith. See Smith, 442 U.S. at 742 (“All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.”)….

(Slip op. at 7).

It doesn’t matter that the subpoenas gave investigators an I.P. address associated with Caira’s home, a place afforded special Fourth Amendment protection. “That argument is foreclosed by Smith, [442 U.S. at 743,] in which government officials sought information that they knew was connected to the defendant’s home, and in which the Court explicitly rejected an argument identical to Caira’s….” (Slip op. at 8).

Nor is the court swayed by Caira’s reliance on the Supreme Court’s recent statements of concern about the government’s ability to collect a large volume of data about a person by electronically tracking the person’s movement, thereby intruding on privacy by allowing the government to contruct a detailed portrait of the person’s daily life. Untied States v. Jones, 132 S. Ct. 945, 953, 955-56  (2012) (Sotomayor J., concurring); id., at 964 (Alito, J., concurring). Besides the fact that Jones didn’t abolish the third-party doctrine, this case doesn’t involve tracking, but only the records of the I.P. addresses Caira used to log in to his Hotmail account. “He did so from two unsurprising places: home and work. The government received no information about how he got from home to work, how long he stayed at either place, or where he was when he was not at home or work. On days when he did not log in, the government had no idea where he was.” (Slip op. at 10).

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