Opinion
1:05-cr-140 Collier/Carter.
December 15, 2005
REPORT AND RECOMMENDATION
I. Introduction
Defendant Ronald Charles McClure ("McClure") filed a motion to suppress (Doc. 13) which has been referred to the undersigned Magistrate Judge to conduct such evidentiary hearings and take whatever action on the motion he deems appropriate and, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), submit to the Court a report and recommendation, if necessary. The undersigned has determined that an evidentiary hearing is unnecessary in this case.
The issue before the undersigned is whether the evidence of defendant's subscriber information, which was obtained pursuant to an investigative subpoena for the subscriber information for the screen name "Ranger96XLT4x4" from AOL, was obtained in violation of the Fourth Amendment. If the evidence obtained as a result of the investigative subpoena was in violation of the Fourth Amendment, then defendant contends all statements made by him and all evidence obtained from the searches of the defendant and the defendant's property should be excluded under the doctrine of the "fruit of the poisonous tree."
II. Relevant Facts
The record before the Court includes an affidavit of R. Douglas Crowe, III, a Special Agent ("SA") of the Federal Bureau of Investigation ("FBI") (Doc.1); defendant's motion to suppress and supporting memorandum of law in support of his motion to suppress (Docs. 13 14); and the government's response (Doc. 16).
The investigation of this case began when Officer Mark Baumgardner of the Perrysburg, Ohio Police Department entered an American Online ("AOL") chat-room in an undercover capacity and received pornographic emails from a person known by the screen-name "Ranger96SLT4x4" (Doc. 14). An investigative subpoena was obtained by a staff member for the Wood County Prosecuting Attorney's Office for the subscriber information for the screen-name "Ranger96SLT4x4" and AOL provided the identity and address of the defendant.
Agent Crowe received information from Officer Mark Baumgardner of the Perrysburg, Ohio Police Department, who advised that while acting in an undercover capacity, he had received emails containing images of child pornography, as defined in Title 18 U.S.C. § 2256(8), from Ronald Charles McClure. Agent Crowe also received information from the Nassau County, New York Police Department and the Charlotte Division of the Federal Bureau of Investigation concerning McClure's involvement in the online trading of images of child pornography (Doc. 1).
On June 10, 2004, Agent Crowe interviewed McClure concerning his involvement in trading images of child pornography on the Internet. McClure provided an oral and written confession concerning his involvement in the online trading of images of child pornography. A search was conducted and a forensic analysis of the computer used by McClure recovered approximately 128 images of child pornography, including twelve email messages with child pornography attachments, and thirteen child-pornography related web pages (Doc. 1). The Bill of Information charges defendant with knowingly possessing material that contained images of child pornography as defined in 18 U.S.C. § 2256(8), that had been transported in interstate commerce by means of a computer in violation of Title 18, United States Code, §§ 2252A(a)(5)(B) and (b)(2).
III. Analysis
Defendant seeks suppression of all evidence obtained against him pursuant to the investigative subpoena and all evidence obtained against him as a result of a subsequent interrogation and search. Defendant challenges the release of his subscriber information by AOL to the government claiming his subscriber information was obtained in violation of the Fourth Amendment.
Defendant concedes that 18 U.S.C. § 2703(c)(2) permits the release of this information to a governmental authority by means of a subpoena which is what occurred in defendant's case. Title 18 U.S.C. § 2703(c)(2) requires a provider of electronic communication service or remote computing service to disclose the subscriber information when a governmental entity uses an administrative subpoena authorized by a Federal or State statute or other identified methods.
A search occurs only when there has been a physical intrusion in a constitutionally protected area. Katz v. United States, 389 U.S. 347 (1967). In Katz the Supreme Court noted that the Fourth Amendment "protects people, not places." Id. at 351-53. The Supreme Court has consistently held that the application of the Fourth Amendment depends on whether the person invoking this protection can demonstrate a justifiable, reasonable, or legitimate expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 143 (1978) (petitioners who failed to show they had any legitimate expectation of privacy in the glove compartment or area under the seat of the vehicle in which they were passengers were not entitled to challenge the search of those areas) and United States v. White, 401 U.S. 745, 752 (1971) (referring to a defendant's constitutionally justifiable expectations of privacy).
A two-part test is utilized to determine whether an intrusion into an individual's privacy violated the Fourth Amendment. A court must determine whether the individual possessed a legitimate subjective expectation of privacy and whether society would recognize the expectation as objectively reasonable. Florida v. Riley, 488 U.S. 445, 449 (1989). An individual must satisfy both portions of the test to implicate a privacy interest protected by the Fourth Amendment. The Court's research only revealed a few cases considering whether society would consider it to be reasonable for an internet subscriber to expect subscriber information to receive internet service to be private. See United States v. Hambrick, 55 F.Supp.2d 504 (W.D.Va. 1999), aff'd 225 F.3d 656 (4th Cir. 2000) (unpublished table decision), available in 2000 WL 1062039, cert. denied, 531 U.S. 1099 (2001) and United States v. Kennedy, 81 F.Supp.2d 1103 (D.Kan. 2000).
In the cases which have considered similar suppression motions as is before the undersigned, the courts have found that, for purposes of the Fourth Amendment, a subscriber does not maintain a reasonable expectation of privacy with respect to his subscriber information. Specifically, the courts have concluded that non-content information, including a subscriber's screen name and corresponding identity is not protected; and the language of the Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. § 2701 eq. seq., expressly permits an internet provider to disclose subscriber information to non-governmental third parties and, under more restrictive conditions, to the government.
In United States v. Hambrick, 55 F.Supp.2d 504, 505 (W.D.Va. 1999), aff'd 225 F.3d 656 (4th Cir. 2000), cert. denied, 531 U.S. 1099 (2001), pursuant to a subpoena served by the government on MindSpring, Hambrick's internet service provider, MindSpring, complied with the subpoena and provided the government with the requested information, including defendant's name and the fact that the defendant had been connected to the Internet at the IP address. Regardless of the fact that the warrant was invalid because the justice of the peace had not issued the subpoena pursuant to a matter pending before him, the court reasoned that defendant had no expectation of privacy in that information.
In the instant case, defendant does not challenge the legality of the subpoena or the grounds for requesting the subpoena, but rather, the defendant disagrees with the current law that there is no Fourth Amendment violation when an internet service provider furnishes subscriber information pursuant to a subpoena. Defendant concedes the invalidity of the motion in his discussion of the law. Moreover, defendant acknowledges that the motion to suppress was filed in the event of a future change in the law as it relates to the constitutionality of internet providers being required to release subscriber information pursuant to a subpoena (Doc. 13).
The general rule governing this case is that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time when the subpoena is issued. California Bankers Assn. v. Shultz, 416 U.S. 21 (1974) ("We decided long ago that an Internal Revenue summons directed to a third-party bank was not a violation of the Fourth Amendment rights of either the bank or the person under investigation by the taxing authorities. `(I)t is difficult to see how the summoning of a third party, and the records of a third party, can violate the rights of the taxpayer, even if a criminal prosecution is contemplated or in progress.'" (citations omitted). The case law on this subject reveals that the disclosure of personal subscriber information to government agents conducting legitimate investigations, when authorized by courts of competent jurisdiction, is not unconstitutional and specifically, the release of the information does not violate the Fourth Amendment. United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan. 2000) ("Defendant's constitutional rights were not violated when Road Runner divulged his subscriber information to the government"). Generally, individuals lose a reasonable expectation of privacy in their information once they reveal it to third parties. See United States v. Miller, 425 U.S. 435, 443 (1976) (held that a bank depositor had no protectible Fourth amendment interest in bank records, consisting of microfilms or checks, deposit slips and other records relating to his accounts at two banks).
This principle has been applied to computer searches and seizures and courts have concluded that computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person. See United States v. Kennedy, 81 F.Supp.2d 1103 (D. Kan. 2000). The Kennedy court concluded the defendant's constitutional rights were not violated when the high speed internet provider divulged his subscriber information to the government because "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Id. at 1110, (quoting Smith v. Maryland, 442 U.S. 735, 743-44 (1979). Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), a case cited by the defendant, involves a civil action where the plaintiffs claim violations of their First and Fourth Amendment rights. The Sixth Circuit concluded the plaintiffs did not have a legitimate expectation of privacy in their subscriber information because they had conveyed it to the system operator. Id. at 336.
Applying the above stated principles to the instant case, when defendant entered into an agreement with AOL he knowingly revealed all information connected to his screen-name "Ranger96XLT4x4" and he cannot now claim to have a Fourth Amendment privacy interest in his subscriber information. Defendant voluntarily and knowingly provided his subscriber information to AOL, thus extinguishing any legitimate expectation of privacy in the information which is merely third-party business records. See Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (when an individual voluntarily conveys information to a third party, the individual "assume[s] the risk" of subsequent disclosure) and United States v. Miller, 425 U.S. 435, 442 (1976) ("This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, 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"). The information defendant provided to AOL when he registered to obtain Internet access from AOL was exposed to AOL employees in the normal course of business. As evidenced by AOL's compliance with the government's request for defendant's subscriber information, defendant's screen name was directly linked to his true identity in AOL's record.
Based on Supreme Court standards, defendant had no legally protected interest in the information provided by AOL to the government pursuant to the investigative subpoena. Accordingly, defendant lacks a Fourth Amendment privacy interest in his subscriber information he communicated it to a third party and therefore, his motion to suppress is DENIED.