Richard Raysman is a Partner in our New York office.
In 2012, the Supreme Court decided the case of United States v. Jones, 132 S. Ct. 945 (2012). Jones involved the government's use of a GPS tracking device on a vehicle and the information gleaned therefrom. The holding was that the defendant could suppress the evidence based on the Fourth Amendment's prohibition against "unreasonable searches and seizures;" because the GPS was placed on the underside of the defendant's car while on his property. Two separate concurring opinions, written by Justices Sotomayor and Alito, each observed that technology had advanced to the point where "electronic or other novel modes of surveillance" are not contingent on a physical invasion of property. Additionally, each observed that individuals may now have a reasonable expectation of privacy under the Fourth Amendment, if only because people now reveal a "great deal" of information about themselves while undertaking "mundane tasks." A recent case in the Eighth Circuit involved an attempt to extrapolate these concurrences into a viable argument that personal data necessary to use the Internet, as well as identifying data intrinsically associated with said use, contained a "reasonable expectation of privacy" even if it was disclosed to a third party. See United States v. Wheelock, No. 14-1504 (8th Cir. 2014). As detailed below, this argument was unsuccessful.
Facts
A member of the Minneapolis Police Department, Officer Dale Hanson, learned that child pornography was available for download from a certain Internet Protocol (IP) address with Comcast as the Internet Service Provider (ISP). After Hanson was granted an administrative subpoena by the county attorney, he submitted the subpoena to Comcast as the ISP in order to learn the subscriber information associated with the IP address. Comcast provided information, including name and address, to Hanson showing that the IP address was associated with defendant Guy Edward Wheelock.
Utilizing the information identifying Wheelock, Hanson obtained a search warrant and its execution yielded several devices containing child pornography and a computer actively downloading suspected child pornography files via a peer-to-peer file sharing program.
Wheelock was then charged with "possessing, receiving, and attempting to distribute child pornography" in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1) and (b)(2). At the trial court, Wheelock argued that all evidence gleaned from the administrative subpoena should be suppressed under the Fourth Amendment. This argument was denied, and Wheelock thereafter conditionally pled guilty to receiving child pornography, thereby preserving the suppression issue.
Legal Analysis/Conclusions
On appeal, Wheelock again argued that the administrative subpoena utilized by Hanson violated the Fourth Amendment as well as federal and state statutes. Specifically, Wheelock averred that he possessed a Fourth Amendment privacy interest in the subscriber information Hanson obtained from Comcast pursuant to the aforementioned subpoena. In order to have a "constitutionally cognizable privacy interest" under the Fourth Amendment, Wheelock had to show (1) a reasonable expectation of privacy in the areas searched or the items seized, and (2) that society is prepared to accept the asserted expectation of privacy as objectively reasonable. See United States v. James, 534 F.3d 868 (8th Cir. 2008).
Under the "third-party doctrine," the Fourth Amendment does not prohibit the obtaining of information (Wheelock's subscriber data, including IP address) revealed to a third party (Comcast) and conveyed by that third party to Government authorities (Hanson). See United States v. Miller, 425 U.S. 435 (1976). The Wheelock court noted that this doctrine was "dispositive here," as Comcast was in possession of the information voluntarily disclosed to it by Wheelock, including the IP addresses, and its disclosure to Hanson did not violate any claim Wheelock may have had to a reasonable expectation of privacy in his IP address. Accord United States v. Perrine, 518 F.3d 1196 (10th Cir. 2008) ("Every 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.").
Wheelock questioned this logic and the continuing viability of the third-party doctrine in light of portions of the concurring opinions by Justices Sotomayor and Alito in Jones. To reiterate, both justices observed that the Fourth Amendment jurisprudence with respect to the third party doctrine could require a reevaluation in light of the unique demands of rapid technological advancement. However, the Wheelock court noted that although "[t]ime may prove Whitlock right," the majority opinion in Jones did not revise its view on the third-party doctrine. Therefore, the court in the instant case was bound by precedent to conclude that Wheelock did not possess a constitutionally cognizable privacy interest in his subscriber data.
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