On Tuesday, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, previously discussed here. The dissent (1) disagrees with the panel’s conclusion that the SWAT team members had a reasonable expectation of privacy in the text messages on the grounds that the decision undermines the standard established by the Supreme Court in O’Connor v. Ortega, 480 U.S. 709 (1987); and (2) finds that the method used by the panel to determine whether the search was reasonable conflicts with Supreme Court precedent holding that the Fourth Amendment does not require the government to use the “least intrusive means” when conducting a “special needs” search. The dissent can be found here. Judge Wardlaw’s concurrence in the denial of rehearing en banc can be found here. We will keep you posted on this one.
Ninth Circuit
Ninth Circuit Applies Pen Register and Mail Principles to Warrantless Monitoring of Internet Traffic
By Proskauer Rose on
In a novel case, the Ninth Circuit ruled on July 6, as amended July 25, that government surveillance of Internet Protocol (“IP”) addresses visited, to/from addresses of emails, and the total volume of information sent to or from an email account does not violate the Fourth Amendment. United States v. Forrester, No. 05-50410, — F.3d — (9th Cir. July 6, 2007). The ruling does not affect the requirement that the government obtain a search warrant before searching the actual content of that Internet traffic.
The defendant in United States v. Forrester, Dennis Louis Alba, was charged and convicted of various federal offenses relating to the operation of an Ecstasy-manufacturing laboratory. During the government’s investigation of Alba, it installed a device on Alba’s computer that gathered the IP addresses of the websites he visited, the to/from addresses of his emails, and the total volume of information sent to or from his email account. In his appeal, Alba contended that the surveillance constituted a warrantless search in violation of the Fourth Amendment and fell outside of the then-applicable pen register statute. The Ninth Circuit addressed the merits of Alba’s first contention, but found it unnecessary to address the second.
The Ninth Circuit applied the Supreme Court’s analysis in Smith v. Maryland, 442 U.S. 735 (1979), in which the Court held that a pen register does not constitute a Fourth Amendment search. The Court so held because pen registers merely track phone numbers dialed and do not reveal the actual contents of conversations. Cf. Katz v. United States, 289 U.S. 347 (1967) (holding that one can have legitimate expectation of privacy in the contents of one’s phone conversations). The Ninth Circuit reasoned that the government’s surveillance of Alba’s activity was “constitutionally indistinguishable” from surveillance via a pen register because accessing IP addresses involves the transmission and receipt of a unique identifier, which does not reveal actual content, via the third-party equipment of an internet service provider. An Internet user therefore does not have a legitimate expectation of privacy in the IP addresses he or she accesses.