United States v. Chaoqun

MEMORANDUM OPINION AND ORDER

Ronald A. Guzmán, United States District Judge.

For the reasons stated below, Defendant's motion for disclosure of or, in the alternative, to suppress evidence obtained from the issuance of national security letters [145] is denied.

STATEMENT

Ji asks the Court to order the government to disclose certain material relating to its issuance of national security letters (“NSLs”) or, alternatively, to suppress any and all evidence obtained or derived from the issuance of those NSLs.

As the Seventh Circuit has stated,

[t]he FBI has statutory authority to issue NSLs to obtain information relevant to counter-terrorism[sic] and counterintelligence investigations. 12 U.S.C. § 3414(a)(5)(A); 15 U.S.C. §§ 1681u(a)-u(b) 1681v(a); 18 U.S.C. § 2709(a)-(b). To pursue those investigations, the FBI may use NSLs to collect information from NSL recipients, such as financial institutions, 12 U.S.C. § 3414(a)(5)(A), credit reporting companies, 15 U.S.C. §§ 1681u, 1681v, telephone companies, and internet service providers, 18 U.S.C. § 2709(b)(1)

Catledge v. Mueller, 323 Fed.Appx. 464, 466 (7th Cir. 2009). In this case, the FBI issued NSLs to obtain information about Ji under three different statutes: the Stored Communications Act (“SCA”), 18 U.S.C. § 2709(a), (b); the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §3414 (a)(5); and the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681u(a), (b).^[1] The

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SCA allows the government to issue an NSL to obtain from an electronic communication provider subscriber information (including the name, length, and length of service), toll billing records information, and the electronic communication transactional records for an account, while the RFPA allows the government to issue an NSL to a financial institution for a customer's financial records. Under the FCRA, the government can obtain from a consumer reporting agency a consumer's name, current and former addresses, current and former places of employment, and the names and addresses of all financial institutions where a consumer maintains or has maintained an account. According to the government, “[i]n discovery, the government produced pertinent information collected using NSLs but not the actual NSLs.” (Gov't's Resp., Dkt. # 174, at 2) (emphasis added). Ji contends that he is entitled to obtain all of the information the government received as a result of the NSLs and the NSLs themselves, pursuant to the normal rules of criminal procedure.

The government argues that “Ji's sole argument for compelling the disclosure of the NSLs issued in this investigation is that he needs them to determine whether any information obtained through the NSLs should be suppressed. . . . [b]ut he has no suppression remedy regardless of what the NSLs show, and already . . . has the information that was obtained in response to those NSLs.” (Gov't's Resp., Dkt. # 174, at 8.) As the government states, “the federal exclusionary rule, which forbids the use of evidence obtained in violation of the Fourth or Fifth Amendments, does not extend to violations of statutes and regulations.” United States v. Kotney, 238 F.3d 815, 818 (7th Cir. 2001). And “[e]ven if this Court were to assume a violation of the SCA, federal courts that have addressed the issue have routinely held that the SCA does not provide for a suppression remedy.” United States v. Khan, 15-CR-00286, 2017 WL 2362572, at *8 (N.D. Ill. May 31, 2017); see also United States v. Edgar, 82 F.3d 499, 510-11 (1st Cir. 1996) (suppression of evidence is not a remedy for governmental violation of the FCRA); United States v. Kington, 801 F.2d 733, 737 (5th Cir. 1986) (refusing to suppress records obtained in violation of the RFPA when Congress did not provide for that remedy in statute). Nor does Ji point to any statutory suppression remedy.

Ji next contends that the searches conducted pursuant to the NSLs violated the Fourth Amendment. United States v. Hammond, 996 F.3d 374, 384 (7th Cir. 2021) (“If a defendant has the requisite expectation of privacy, the Fourth Amendment generally requires law enforcement to obtain a warrant before executing a search.”). The government asserts that the Fourth

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Amendment is inapplicable here because of the third-party doctrine: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” United States v. Soybel, 13 F.4th 584, 2021 WL 4076759, at *5 (7th Cir. Sept. 8, 2021) (alteration and citation omitted). In other words, “[a] person generally ‘has no legitimate expectation of privacy in information he voluntarily turns over to third parties,' subjective expectations notwithstanding.” Id. (citation omitted). “Where the third-party doctrine applies, ‘the [g]overnment is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.'” Id. (citation omitted).

Ji's reliance on the Supreme Court's application of the third-party doctrine in Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206 (2018), is unpersuasive. In Carpenter, the Supreme Court found that law enforcement officers “had ‘invaded Carpenter's reasonable expectation of privacy in the whole of his physical movements' by obtaining historical CSLI [cell-site location information] without a warrant supported by probable cause.” Id. The Seventh Circuit recently rejected a defendant's attempt to expand Carpenter to provide for “a reasonable expectation of privacy in his ‘personal internet traffic data.'” Soybel, 2021 WL 4076759, at *6.^[2] The Soybel court noted that the Carpenter decision was, by its own designation, a “‘narrow one'” and “not a wholesale repudiation of . . . the third-party doctrine generally.” Id. (citation omitted). Rather, the Carpenter court stressed that the issue before it “was ‘novel' both as to the instrumentality of the search and in the information captured”...