United States v. Cox

465 F.Supp.3d 854

UNITED STATES of America

v.Bradley M. COX

Cause No. 1:18-CR-83-HAB

United States District Court, N.D. Indiana, Fort Wayne Division.

Signed June 3, 2020

Sarah E. Nokes, Lesley J. Miller Lowery, US Attorney's Office, Fort Wayne, IN, for United States of America.

David L. Joley, Joley Law Firm PC, Fort Wayne, IN, for Bradley M. Cox.

Bradley M. Cox, Decatur, IN, pro se.

OPINION AND ORDER

HOLLY A. BRADY, JUDGE

If anyone needed more motivation to get off social media, consider the instant case. In spring 2018, the FBI was asked to begin an investigation into online extortion of sexual material. They traced the activity to Defendant's employer, where they discovered a virtual private network known to have been involved in the scheme on Defendant's work computer. Agents then questioned Defendant at his home, where he admitted to using multiple Facebook accounts to solicit child pornography and extort sexual material from victims.

Following up on Defendant's confession, the Government sought and obtained a subpoena pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d) (the "SCA"), directed to Facebook. Through the subpoena, the Government obtained registration information, billing records, records of session times and durations, and IP addresses and cookies linked to the accounts used by Defendant (collectively the "Records"). The Government did not obtain the content of any of the accounts.

Defendant now challenges the Government's acquisition of the Records as a warrantless search in violation of the Fourth Amendment. According to Defendant, the Supreme Court's decision in Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), created an exception to the third-party doctrine that protects the Records from being obtained without a warrant. Defendant is not the first person to make this argument. Instead, this same argument has been made by multiple defendants across the country. To date, no court has accepted the argument, and that streak will not end today.

A. Fourth Amendment

The Fourth Amendment generally requires that the government obtain a warrant based on probable cause before conducting a search. See Katz v. United States , 389 U.S. 347, 362, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring) ("[U]nder the Fourth Amendment, warrants are the general rule."). For an "intrusion into [the] private sphere" to constitute a "search," a defendant must "seek[ ] to preserve something as private," and "society [must be] prepared to recognize [that privacy expectation] as reasonable." Carpenter 138 S. Ct. at 2213 (quoting Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) ).

Because an individual must seek to preserve something as private before a search can be said to have occurred, information shared with third parties is generally not protected. This is called the third party doctrine. See Smith , 442 U.S. at 743-44, 99 S.Ct. 2577 (noting that the Supreme Court has "consistently ... held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties") Pursuant to that doctrine, the Supreme Court has separately held that the government need not secure a warrant to obtain recordings of voluntary conversations surreptitiously captured via radio transmitter, see United States v. White , 401 U.S. 745, 752-53, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), records from banks, see United States v. Miller , 425 U.S. 435, 444, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), and certain phone call data from pen registers, see Smith , 442 U.S. at 745-46, 99 S.Ct. 2577, because the information at issue in each instance had been voluntarily disclosed by the defendant to a third party, see id. at 743-44, 99 S.Ct. 2577.

Defendant does not dispute that he voluntarily disclosed to Facebook (either directly or through associated third-party websites or apps) the information contained in the Records that he now seeks to suppress. He contends, however, that the Supreme Court's decision in Carpenter shows that the third-party doctrine does not apply to the information at issue here and thus that the government needed a warrant to acquire that information.

In Carpenter , the defendant challenged on Fourth Amendment grounds the government's warrantless acquisition -- pursuant to the SCA -- of his cell-site location information ("CSLI") from his wireless telecommunications carrier. 138 S.Ct. at 2211-12. The CSLI data acquired in Carpenter depicted the defendant's movements across nearly 13,000 specific location points during a 127-day span. Id. at 2212.

The government, in response, invoked the third-party doctrine to justify its warrantless acquisition of the CSLI from the carrier. Id. at 2219. The Supreme Court held, however, that the government's acquisition of the CSLI from the carrier constituted a search, for which the government needed a warrant, because Carpenter retained a reasonable expectation of privacy in the CSLI at issue even though he had shared it with his wireless carrier. Id. at 2217-20.

Carpenter explained that, given the location information that CSLI conveyed and the fact that a cell phone user transmits it simply by possessing the cell phone, if the government could access the CSLI that it had acquired without a warrant in that case, then the result would be that "[o]nly the few without cell phones could escape" what would amount to "tireless and absolute surveillance." Id. at 2218. Carpenter thus declined to extend the third-party doctrine to the CSLI at issue in that case and instead determined that Carpenter did have a reasonable expectation of privacy in the CSLI that he sought to suppress. Id. at 2219-20.

Defendant contends that the Records the government acquired from Facebook without a warrant are not materially different from the CSLI that was at issue in Carpenter . He notes in this regard that this information enabled the Government to determine his precise location when he logged on to Facebook and associated apps, as well as the date and time of those digital transmissions. For that reason, he contends, Carpenter establishes that the Government needed a warrant to acquire the information from Facebook that he seeks to suppress, because "[a]ll of the relevant factors which make CSLI overly intrusive apply to the location information kept by Facebook, Inc." (ECF No. 133 at 6).

Reasonable minds can debate whether, as a society, we want entities such as Facebook to log the kind of information contained in the Records. But what cannot be debated is that Facebook has this information only by virtue of individuals making an affirmative choice to provide it. Decisions post- Carpenter have noted the volitional aspect of IP address collection as a key point of distinction from CSLI. See , e.g. , United States v. Hood , 920 F.3d 87, 92 (1st Cir. 2019) ("an internet user generates the IP address data that the government acquired from Kik in this case only by making the affirmative decision to access a website or application. By contrast, as the Supreme Court noted in Carpenter , every time a cell phone receives a call, text message, or email, the cell phone pings CSLI to the nearest cell site tower without the cell phone user lifting a finger."); see also United States v. Caira , 833 F.3d 803, 808 (7th Cir. 2016) ("the government only received record of the I.P. addresses Caira used to log in to his Hotmail account.... On days when he did not log in, the government had no idea where he was."). Defendant's own filings demonstrate this point: Defendant identifies several instances where Facebook logs a user's IP address, including "changing account information to sending attachments in private messages to uploading photos to the profile," amongst other "events [that] occur during the normal course of using Facebook as intended." (ECF No. 133 at 5). All these events require affirmative action by the user. Indeed, Defendant has not identified a single instance where Facebook creates an IP log without user action. Defendant is correct that the Records contain potentially personal information about his life, but they contain no more than he chose to provide.¹ This fact, in and of itself, takes the Records outside of the scope of Carpenter . See , e.g. , United States v. Kidd , 394 F.Supp.3d 357, 366 (S.D.N.Y. 2019) (holding that defendant needed to establish that his cell phone: "(1) passively generates IP address information for Pinger to collect in a way similar to CSLI; or (2) consistently conveys granular location information.").

Defendant also overstates the precision of the information gathered from the Records. Defendant's characterization of the Records as providing his "exact location" is, as the Seventh Circuit has recognized, an "unhelpful exaggeration." Id. at 808. Rather, "the IP address data that the government acquired from [Facebook] does not itself convey any location information. The IP address data is merely a string of numbers associated with a device that had, at one time, accessed a wireless network." Hood , 920 F.3d at 92. As the Government correctly notes, that string of numbers means nothing without additional investigation, including but not limited to gathering specific user and location information from an internet service provider. (ECF No. 137 at 11, n. 5). While this fact is not necessarily determinative, see Kidd , 394 F.Supp.3d at 365–66, it does weigh against finding that the Records act as a tracking device.

The legal issues aside, Defendant's motion fails for a more fundamental reason. All the information contained in Defendant's filings regarding the Records, their contents, and the ability of the Government to use the Records for tracking purposes comes solely from Defendant. Throughout his filings, Defendant makes hyperbolic statements like the Records reveal his "exact location" (ECF No. 133 at 5); that they create "a detailed chronicle of [his] physical presence" (Id. at 6)...