Although it was somewhat of a secondary issue, there was an interesting decision this week from the South Dakota Supreme Court. It held that a person has no privacy interest in their IP address, at least for purposes of the constitutional protection against unreasonable search and seizure.
To begin with, an IP address is the address your internet service provider (ISP) assigns your account on its network for internet access. An ISP can determine to what particular account any specific IP adress was assigned at a particular time. That is all an IP address does, though. It does not identify the device being used or who may be using that device. It could even be your neighbor or someone else “borrowing” your wireless access.
In the Supreme Court decision, the Pennington County Sheriff’s Department used software to determine a specific IP address that made child pornography available for downloading via LimeWire. It then issued a subpoena to Midcontinent Communications, the ISP that assigned the IP address, requesting the email address and personal information of the subscriber to whom it was assigned at the relevant times. (Subscribers rarely have a “static” IP address. Instead, a new address is assigned at specific intervals or as a result of specific events, such as restarting a modem or router.)
In response to the subpoena, Midcontinent provided the address, phone number and email address of the subscriber, John Rolfe of Rapid City. After obtaining a search warrant, authorities found child pornography involving the 12-year-old daughter of Rolfe’s son’s live-in girlfriend on a laptop in Rolfe’s bedroom. The girl told investigators Rolfe had drugged, sexually assaulted, and photographed her over several years. Rolfe was charged with and convicted of three counts of first-degree rape of a minor and 12 counts of possessing, manufacturing, or distributing child pornography.
At trial and on appeal Rolfe contended authorities couldn’t issue a subpoena for his account information before he was indicted. Both the trial court and the Supreme Court disagreed. South Dakota has no statutes in this area. As a result, the courts relied on existing Fourth Amendment jurisprudence. They said Rolfe could not even challenge the subpoena because a person must have a privacy interest in the material sought to invoke the guarantee against unreasonable search and seizure. The Supreme Court reasoned that because Rolfe provided his contact information to Midcontinent, he had “no legitimate expectation of privacy” in it.
Regardless of one’s individual views of whether we should have a reasonable expectation of privacy in such information, the Court probably reached the right result under the law. In fact, the federal Electronic Communications Privacy Act requires ISPs to provide certain information about a subscriber, including name, address and IP address to a subpoena issued by federal prosecutors.
… there is no violation of a defendant’s Fourth Amendment rights when a third party internet provider receives a subpoena and discloses the defendant’s subscriber information.
State v. Rolfe, 2013 SD 2
