Saturday, October 15, 2016

Sassafras Oil, the IP Address and the Fourth Amendment

This post examines a decision from the U.S. Court of Appeals for the 7th Circuit:  U.S. v. Caira, 2016 WL 4376472 (2016). The court begins by noting that Frank Caira
pled guilty in the United States District Court for the Northern District of Illinois, Rebecca R. Pallmeyer, J., to possessing and conspiring to manufacture illegal drugs, after his motion to suppress was denied.
U.S. v. Caira, supra.
The Seventh Circuit goes on to explain that
[s]omeone used the email address 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. The website was being monitored by the Drug EnforcementAdministration, which began an investigation that culminated in Frank Caira being convicted on drug charges. A key step in the investigation was learning that Caira was the person behind the gslabs address. The DEA made that discovery by issuing administrative subpoenas to technology companies, without getting a warrant.

Arguing that the DEA conducted an `unreasonable search’ in violation of the Fourth Amendment, Caira moved to suppress much of the evidence against him. The district court denied his motion and we affirm. Because Caira voluntarily shared the relevant information with technology companies, he did not have a reasonable expectation of privacy in the information, so his Fourth Amendment rights were not violated.

In sentencing Caira, the district judge erred by imposing conditions of supervised release without justifying them on the record. But Caira is serving a life sentence for another conviction. He is not expected to be released from prison so the conditions are not expected to be imposed. If he is released, a court can modify the conditions at that point. So the judge's error was harmless and we affirm Caira's sentence as well.
U.S. v. Caira, supra (emphasis in the original).
As Wikipedia notes, the Fourth Amendment to the U.S. Constitution
prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. It is part of the Bill of Rights and was adopted in response to the abuse of the writ of assistance, a type of general search warrant issued by the British government and a major source of tension in pre-Revolutionary America. 
Getting back to the Court of Appeals’ opinion, the court goes on to explain that
[b]etween July and September 2008, emails were sent from to an email address associated with a website hosted in Vietnam. The emails asked about buying sassafras oil, an ingredient in ecstasy. The DEA, which had been monitoring the website, sent an administrative subpoena to Microsoft Corporation (the owner of Hotmail, the web-based email service for email addresses). The subpoena asked for:
[A]ll basic subscriber information, including the subscriber's name, address, length of service (including start date) and types of services used including any temporarily assigned network address, accounts, means and source of payment (including credit card or bank account number), and the account login histories (IP Login history) of, the following email account(s):

For this case, the request for “account login histories (IP Login history)” is key. Internet Protocol (abbreviated as “I.P.”) addresses are used to identify computers connected to the internet. The allocation of addresses is centrally managed so one can look up in a public registry which internet service provider “owns” a particular address.

Responding to the subpoena, Microsoft gave the DEA information about instances in which the account was accessed between July 5 and September 15, 2008. For each instance, Microsoft provided the date, time, and an I.P. address associated with the computer that accessed the account. The DEA saw that was an I.P. address frequently used to access the account, so it sent an administrative subpoena to Comcast Corporation (the owner of that I.P. address). The subpoena asked for:

`Any and all e-mail addresses associated with []; a) customer name and other user name(s); b) addresses; c) records of session times and durations; d) length of service (including start date) and types of service used; e) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and f) means and source of payment for such service (including any credit card or bank account numbers).’

Comcast responded that the address was assigned to Anna Caira, and Comcast gave the DEA Anna's home address. The investigation continued from there and culminated in Anna's husband, Frank Caira, being charged with possessing and conspiring to manufacture illegal drugs, in violation of 21 U.S. Code §§  841(a)(1) and 846.
U.S. v. Caira, supra.
The opinion goes on to explain that Caira
moved to suppress evidence obtained through the subpoenas, arguing that the government's inquiry was a `search’ under the Fourth Amendment, and that a warrant was required. The district court denied that motion and Caira pleaded guilty while reserving his right to appeal the denial of his suppression motion. This is that appeal. Caira also appeals his sentence because the district judge imposed conditions of supervised release without justifying the conditions on the record.
U.S. v. Caira, supra.
The Court of Appeals began its analysis of the arguments Caira made on appeal with the issue of whether federal agents carried out a Fourth Amendment “search” without first obtaining a search warrant authorizing the search.  U.S. v. Caira, supra. It began its analysis of this issue by explaining that the
Fourth Amendment provides that `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ U.S. Const. amend. IV. Caira contends that the DEA's actions amounted to an unreasonable search. The district court disagreed. We review the court's legal conclusions de novo, as well as its treatment of mixed questions of law and fact; we review its factual findings for clear error. United States v. Henderson, 748 F.3d 788, 790 (7th Cir. 2014).

Under the Fourth Amendment, a `search’ occurs when “`he government violates a subjective expectation of privacy that society recognizes as reasonable.’  Kyllo v. United States, 533 U.S. 27, 33 (2001)see Katz v. United States, 389 U.S. 347,361 (1967) (Harlan, J., concurring). 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. But 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 `third-party 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.’ Smith v. Maryland, supra (citing United States v. Miller, supra).

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 v. Maryland, supra (internal quotation marks and citation omitted). Accordingly, the government's pursuit of the information `was not a ‘search,’ and no warrant was required.’ Smith v. Maryland, supra.
U.S. v. Caira, supra (emphasis in the original).
The Court of Appeals began its analysis of Caira’s argument by noting that he
complains about the DEA's inquiry into the I.P. addresses that were used to access In United States v. Weast, the Fifth Circuit wrote that I.P. addresses are broadcast `far and wide in the course of normal internet use.’ 811 F.3d 743, 747 (U.S. Court of Appeals for the 5th Circuit 2016). Caira has not argued that such a description is inaccurate; indeed, his lawyer appeared to concede as much at oral argument. In any event, Miller and Smith control if Caira shared his I.P. address with even one third party. See, e.g., United States v. Christie, 624 F.3d 558 (U.S. Court of Appeals for the 3rd Circuit 2010) (because defendant shared his I.P. address with the websites he visited, the government did not need a warrant to obtain that address through the administrator of one of those websites); United States v. Beckett, 369 Fed.Appx. 52, 56 (U.S. Court of Appeals for the 11th Circuit 2010) (nonprecedential) (defendant did not have a reasonable expectation of privacy in his I.P. address because that information is `transmitted during internet usage’ and is `necessary for the [internet service providers] . . . to perform their services’); United States v. Perrine, 518 F.3d 1196, 1204–05 (U.S. Court of Appeals for the 10th Circuit 2008) (defendant had no `Fourth Amendment privacy expectation’ in his I.P. address, which he had shared with Yahoo! by using an online chat service); United States v. Forrester, 512 F.3d 500, 510 (U.S. Court of Appeals for the 9th Circuit 2008) (defendant had no reasonable expectation of privacy in the I.P. addresses of websites he visited, because he voluntarily shared that information with his internet service provider, as was necessary to view the websites).
U.S. v. Caira, supra (emphasis in the original).
The court goes on to explain that in this case,
Caira 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. It would have done him no good if his inbox was instead displayed on the screen attached to his computer at work, or a computer at the public library, or the computer he used years earlier when first signing up for a Hotmail account. 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. So this case is controlled by Miller and Smith. See Smith, 442 U.S. at 742 (`All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed’);see also United States v. Graham, 2016 U.S. App. LEXIS 9797, at *21 (U.S. Court of Appeals for the 4th Circuit  May 31, 2016) (en banc) (`[L]ike the defendant in Smith, Defendants here did “assume the risk” that the phone company would make a record of the information necessary to accomplish the very tasks they paid the phone company to perform. They cannot now protest that providing this essential information was involuntary’).

This case parallels the Tenth Circuit's case in United States v. Perrine, 518 F.3d 1196. Here, law enforcement observed a suspicious conversation on Microsoft's email service. In Perrine, it was Yahoo!'s online chat service. Id. at 1199–1201. Here, the government sent a subpoena asking Microsoft for I.P. addresses associated with In Perrine, the subpoena asked Yahoo! for addresses associated with the username `stevedragonslayer.’ Id. at 1199. In each case, officials studied the subpoena response, focused on a particular I.P. address, and sent a second subpoena, to the internet service provider that owned the address of interest (here, Comcast; in Perrine, Cox Communications). In each case, the response to that second subpoena led to the defendant's residence, which led to criminal charges against the defendant. See Perrine, 518 F.3d at 1199–1200. The Perrine court held that Perrine had no `Fourth Amendment privacy expectation’ in the `information he gave to Yahoo! and Cox.’ Id. at 1204. A parallel conclusion here would require us to affirm the denial of Caira's motion to suppress.
U.S. v. Caira, supra.
The Court of Appeals went on to explain that Caira
urges reversal, arguing that his case is special because the DEA discovered the I.P. address associated with his home—and the DEA knew that would happen, because people often check their email from home—and the home is given special protection under the Fourth Amendment, see Payton v. New York, 445 U.S. 573, 586 (1986)Kyllo v. United States,533 U.S. at 40, 121 S.Ct. 2038. That argument is foreclosed by Smith v. Maryland, supra, in which government officials sought information that they knew was connected to the defendant's home, and in which the Court explicitly rejected an argument identical to Caira's:

`Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he used the telephone in his house to the exclusion of all others. But the site of the call is immaterial for purposes of analysis in this case. Although petitioner's conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.’
U.S. v. Caira, supra (emphases in the original).
The Court of Appeals went on to explain that
[b]ecause 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.
U.S. v. Caira, supra.
Finally, the Court of Appeal took up Caira’s challenge to his sentence.  U.S. v. Caira, supra.
It began its analysis of this issue by explaining that
Caira also appealed his sentence. The district judge sentenced him to twenty-five years in prison, followed by five years of supervised release. The judgment specified fourteen conditions of supervised release, but those conditions were not justified on the record at Caira's sentencing hearing. Ordinarily, that would require us to remand for resentencing. See United States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. Johnson, 765 F.3d 702, 710–11 (7th Cir. 2014).

But Caira's case has a wrinkle. Before pleading guilty, in an attempt to avoid conviction, he tried to have the prosecutor and DEA agent murdered. For that, he was sentenced to life in prison. See United States v. Caira, 737 F.3d 455 (7th Cir. 2013). Citing United States v. Bour, 804 F.3d 880, 887–88 (7th Cir. 2015), the government argues that the district judge's failure to justify the conditions of supervised release on the record was harmless because: (i) Caira will not be released from prison so he will not be subject to the conditions; and (ii) if for some reason he is released one day, a court can modify the conditions at that point, see 18 U.S. Code §3583(e)(2). The government argues that such an approach is preferable because it avoids `perpetuating expensive and time-consuming appeals and resentencings.’ United States v. Bour, supra.   Caira did not respond to that argument in his reply brief, and we find it persuasive.
U.S. v. Caira, supra.
The Court of Appeals therefore affirmed the judgment of the district court. U.S. v. Caira, supra.

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