Facts: This is a typical ICAC investigation using Roundup on the Gnutella Network. The officer made a direct connection with defendant, downloaded images of child sexual exploitation, and captured the IP Address. A subpoena was sent to AT&T for subscriber information. Following receipt, a search warrant was issued for defendant’s home. Items of evidentiary value were found in Defendant’s hard drive. He was charged with possession and pandering images. Defendant moved to suppress the subscriber information and all derivative evidence. Motion was denied. Defendant was convicted. He appeals that conviction.
Issue 1: Whether the Judge erred in denying the motion to suppress the subscriber information and derivative evidence. In other words, is there an expectation of privacy in one’s IP Address and Subscriber Information?
Law: Appellant specifically claims that AT&T wrongfully turned over the subscriber information based on a subpoena, when the ECPA requires a court-order.
The Electronic Communications Privacy Act (“ECPA”), which regulates the disclosure of electronic communications and subscriber information. In pertinent part, 18 U.S.C. 2703(c)(1) provides: “[a] governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity … (A) obtains a warrant using the procedures described…
The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Ohio Constitution, Article I, Section 14, protects individuals against “unreasonable searches and seizures” by the government and protects privacy interests where an individual has a reasonable expectation of privacy. See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). An expectation of privacy is protected by the Fourth Amendment where (1) an individual has exhibited a subjective expectation of privacy, and (2) that expectation of privacy is one that “society is prepared to recognize as ‘reasonable.’ ” Id., quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Generally, any evidence obtained in violation of the Fourth Amendment, as well as any evidence seized subsequent to such violation, must be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.
Analysis: Appellant argued that he had a reasonable expectation of privacy in his IP address and subscriber information.
In State v. Thornton, 10th Dist. No. 09AP–108, 2009-Ohio-5125, 2009 WL 3090409, this court noted the general principle that “[a]n individual cannot be said to have a reasonable expectation of privacy in that which he knowingly exposes to the public.” Id. at 11, citing State v. Lopez, 2d Dist. No. 94–CA–21, 1994 WL 527670 (Sept. 28, 1994), citing Katz. Applying that principle, we held that Thornton had no reasonable expectation of privacy in either computer files he had made available to the public using file-sharing software or in the IP address associated with his computer. Id. At 12, citing United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.2008); United States v. Borowy, 577 F.Supp.2d 1133, 1136 (D.Nev.2008); United States v. Forrester, 512 F.3d 500, 510 (9thCir.2008); United States v. Li, S.D. Cal. No. 07 CR 2915 JM, 2008 WL 789899 (Mar. 20, 2008). We noted that in such situations, “Fourth Amendment protections are not implicated because a search does not occur.” Thornton at 12, citing State v. Keith, 10th Dist. No. 08AP–28, 2008-Ohio-6122, 2008 WL 5049753, 16.
Beyond Ohio, “[f]ederal courts have uniformly held that ‘subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation’ because it is voluntarily conveyed to third parties.” United States v. Christie, 624 F.3d 558, 573 (3d Cir.2010), quoting Perrine at 1204. The court reasoned that “ ‘IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party servers.’ ” Id. at 574, quoting Forrester at 510. See also United States v. Suing, 712 F.3d 1209, 1213 (8th Cir.2013)
With respect to the argument that AT&T improperly turned over the subscriber information in response to a subpoena versus a search warrant, the court held that the proper remedy was civil damages from AT&T not suppression.
Issue 2: Whether there is sufficient evidence to support the convictions.
Law: Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to support a verdict is a question of law. Id. In determining whether the evidence is legally sufficient to support a conviction, “ ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the evidence in a light most favorable to the prosecution, it is apparent that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
Analysis: During appellant’s police interrogation he admitted that he was an IT person, and was aware that computers left a trail. He also acknowledged that there was probably “something” on his computer related to the child sexual abuse images. The forensic analysis revealed a number of files located in the deleted files, and the shadow volume. It revealed that the program Shareaza was downloaded and the following search terms were found to have been used: “gay pedo,” “gay-kdv,” “gay boy,” “gay young,”and “pedo boy.” In his interrogation, appellant acknowledged that these search terms would be indicative of child sexual abuse image terms.
Although the Government’s expert could not offer an opinion as to the precise method by which the files were downloaded, the circumstantial evidence was strong. The fact that the images were in the deleted files and in the shadow volume were of no consequence because they had to exist on the computer at one time.