Chicago Search and Seizure Attorney Michael J. Petro discusses Search Warrants, Illegal Searches and the "Third Party Doctrine."
US v. Frank Caira, No. 14-1003. (7th Cir. August 2016.)
Someone used the email address email@example.com to contact a Vietnamese website in an attempt to buy sassafras oil—a chemical that can be used to make the illegal drug known as ecstasy. A key step in the investigation was learning that Caira was the person behind the firstname.lastname@example.org address. The DEA made that discovery by issuing administrative subpoenas to technology companies, without getting a warrant. Caira moved to suppress evidence obtained through the subpoenas, arguing that the government's inquiry was an unreasonable "search" under the Fourth Amendment, and that a warrant was required.
Under the Fourth Amendment, a "search" occurs when "the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33 (2001) . Caira argues that I.P. addresses reveal information about a computer user's physical location, and people have both a subjective and objectively reasonable expectation of privacy in their physical location.
In United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court developed a bright-line application of the reasonable-expectation-of-privacy test that is relevant here. In what has come to be known as the "thirdparty doctrine," the Court held 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."
In Miller, the defendant had no reasonable expectation of privacy in his banking records, even though they contained sensitive financial information, because he had voluntarily shared the information with a third party—the bank. 425 U.S. at 442-44. And in Smith, the 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. 442 U.S. at 743-44.
Even if such defendants had a subjective expectation of privacy, Miller and Smith held that once information is voluntarily disclosed to a third party, any such expectation is "not one that society is prepared to recognize as reasonable." Smith, 442 U.S. at 743 . Accordingly, the government's pursuit of the information "was not a `search,' and no warrant was required." Smith, 442 U.S. at 746.
Here, Caira voluntarily 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. 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.
Because Caira voluntarily shared his I.P. addresses with Microsoft, he had no reasonable expectation of privacy in those addresses. So the DEA committed no Fourth Amendment "search" when it subpoenaed that information, and the district court was right to deny Caira's motion to suppress.