First Circuit Finds There is No Expectation of Privacy for IP Address Information
In an important holding regarding an individual’s constitutional right to protection from unreasonable searches, the United States Court of Appeals, First Circuit, held that a criminal defendant did not have a reasonable expectation of privacy in internet protocol (IP) address data that was acquired by the government from a smart phone application company without a search warrant.
In U.S. v. Hood, — F.3d. –, 2019 WL 1466943 (1st Cir. 2019), a user of the smart phone messaging application Kik, who went by the username “rustyhood,” had been identified as transporting child pornography over the application with a resident of Cleveland, Ohio. The Maine and Ohio offices of the Homeland Security Investigations (HIS), an investigative arm of the Department of Homeland Security, collaborated in investigating the exchanges between the two individuals. As a part of the investigation, the Maine HSI office issued an Emergency Disclosure Request to Kik pursuant to the Stored Communications Act, 18 U.S.C. Section 2702, seeking subscriber information and recent IP addresses associated with the “rustyhood” account. Kik responded by providing, among other things, the most recent IP logs associated with the account, which indicated that the account had been accessed from three separate IP addresses in a span of four days. Maine HSI used the IP information to determine the digital communications providers who owned the IP addresses. Maine HSI then requested from those companies the location information associated with the IP addresses. In doing so, Maine HSI was able to narrow the location of “rustyhood” to Sanford, Maine. Through additional investigation, Maine HSI was able to determine that there was only one individual in Maine named “Rusty Hood” (Hood), which led Maine HSI to Hood’s Facebook account containing pictures matching those in the Kik profile of “rustyhood”. Through cooperation with the local police department, Maine HSI was able to confirm that Hood was “rustyhood.” The government used this information to file a criminal complaint against Mr. Hood that charged him with transporting child pornography.
Upon his arrest, Mr. Hood filed a motion to suppress the evidence gathered against him from Kik, including the IP address information, on the basis the government had violated the Fourth Amendment to the U.S. Constitution because such information was procured without a warrant. The District Court rejected Mr. Hood’s motion based on the “third-party doctrine,” which provides that a warrant is not required for information a person voluntarily turns over to third parties, given there is no legitimate expectation of privacy in connection with that information.
Hood appealed the District Court’s decision, contending that the government’s acquisition of the IP address information constituted a “search” for which the government needed a warrant, since it permitted the government to identify his location. In making this argument, Hood relied on the Supreme Court’s decision in Carpenter v. U.S., 138 S.Ct. 2206 (2018), where the court found that an individual had a reasonable expectation of privacy from the government’s acquisition of cell-site location information (CSLI) that was used to identify a defendant’s specific location over a certain time span. The court’s logic was that because the CSLI is transmitted simply by possessing a cell phone, permitting the government to access the information without a warrant would amount to “tireless and absolute surveillance.” Hood asserted that the IP address information is no different than the CSLI at issue in Carpenter. The First Circuit disagreed, noting that IP address information is only generated when the individual makes an affirmative decision to access the application, and the information does not itself convey any location information. The court held that IP address information “in no way gives rise to the unusual concern that the Supreme Court identified in Carpenter,” thus permitting its acquisition without a warrant.