- This is a district court Judge’s ruling on a motion, which has not yet withstood appellate scrutiny. However the issue presented is important to capture emerging trends in the field.
Facts: An image of child pornography was uploaded to a website which advertised and distributed such images. Federal Agents obtained the image, and used the metadata from the image to acquire GPS coordinates for where the image was taken. (Appellant used a program to make his IP Address anonymous. While not specifically mentioned, TOR (an onion router) is a typical browser which achieves this goal (to some degree).
*Metadata- In digital photos, metadata typically includes “the date and time the photo was taken; camera settings, such as aperture and shutter speed; manufacturer make and model … and—in the case of smartphones—the GPS coordinates of where the photo was taken… In most cases, this information is automatically embedded in digital pictures unless the user opts out of the features that capture the information. For instance, the Apple iPhone automatically captures the coordinates of where a picture is taken unless the user turns off the iPhone’s geotagging feature.” Nelson, et.al., Too Much Information: Photos taken with a digital camera contain metadata. Should you care?, Texas Bar Journal, Jan. 2014
There are a number of free websites which allow users to view the metadata of images. For example, Opanda.com (screen shot below), and exif-viewer.com
Using the GPS coordinates acquired through Opanda, Agents went to a home in League City, Texas. The occupants of the home however did not own iPhones, and had a leather couch (the photo from the website was a white couch). After explaining why they were asking, the occupants directed the Agents to a home about 100 feet from theirs (within the margin of error for GPS via iPhone). The occupants mentioned that this home contained a sex offender. Agents confirmed via the registry, a sex offender (appellant) resided there. Once at appellant’s home, appellant allowed the Agents inside. Agents confirmed a white couch, and appellant admitted to taking ten photos of the four-year old girl depicted in the original website photo. With consent, Agents found other images of child pornography.
Attack on Metadata– In a unique argument, appellant argued that while he did not have a reasonable expectation of privacy in the picture he uploaded to the website; he did retain REP in the metadata of that image.
Law: Using standard Fourth Amendment law and precedent, the Judge held that appellant gave up any privacy interest in the image once he posted it to the website. Any attempt to parse out the image from the metadata is unfounded in Fourth Amendment jurisprudence. I do recommend a reading of the law and analysis used by this Judge, it is great material for motions practice.
Holding: Motion Denied.