it please the court e g cunningham of the federal defender's office on behalf of the appellant i'd like to reserve three minutes of if possible the th amendment requires a warrant supported by probable cause to obtain the subscriber information associated with an ip address because of what that information can reveal about online activities in the home as the supreme court recently held in carpenter the rd party party doctrine does not always apply in the digital age in determining whether to apply it the court must consider the extent to which a warrant is needed to protect privacy and security against arbitrary government invasions in light of technological advances must also consider the extent to which the sharing of the information is truly voluntary applying these principles to the subscriber information associated with an ip address a warrant is needed st of all the sharing of the information is not truly voluntary we have to have an ip address to use the internet to send an e mail to do a search on a website to do anything can we have what what do we do about the concept of the reasonable expectation of privacy in this and now well your honor as i'm explaining this is not truly voluntary and most american seventy percent do consider their online travels to be private in carpenter i think most people have a reasonable expectation of privacy in their i or your honor not in those linkage of subscriber information with the ip address now certainly the ip address is out there but it's the problem arises when police can obtain whose i address it is but isn't that like a obtaining somebody whose name no your honor it's not because what happens is when you're searching on the internet all of your searches that you conduct content that you're contributing to the to online forums content aside if someone just wants to link and i p address with an individual do you think that that violates a reasonable expectation of privacy well what the police can do with that but before we get to that point linking and ip address with individual do you think that validates the concept of the reasonable expectation of privacy yes your honor without limits because once the police get that information and using a subpoena provides no judicial oversight then they can go just a painting the name of the person associated with the ip address tell you what your strongest case is to support the proposition that there is a reasonable expectation of privacy in the name think it's right on point and very consistent with our supreme court's concerns in riley and carpenter because your honor there's no there's no oversight of what the police do once they link the subscriber information with your ip address they can get that information under current law for whatever reason they want and then they can target political enemies personal enemies that may be a different issue that we're only talking about it has is just russians that's just getting the identification of the association with the ip address you're not entirely or truly voluntary you saying that by most anything we do today measuring your motor vehicle you know you don't not obligated to that but if you want to drive a car you do that bank bank records things of that nature  or what's different is that unless we have a warrant requirement there is no oversight about what the police do with this information a phone book is very different although it's in a phone when it's over there we're not dealing right now with working what they're going to do with it the question is whether for the particular instance of obtain that information you need a warrant is not where they somehow abuse that right or if it's a right they are on but if we don't require warrant supported by probable cause which can limit the use for example to say you can use this information to see if an individual has access to child pornography websites there is no limit to what they can do and they're probably they're doing it right now they're surveilling citizens seeing what they're up to on the internet looking at very private information of this writing the right to to anonymous speech by knowing what this is an anonymous ip address but once you know the household that it's associated with it's no longer anonymous and so police can ascertain exactly what kind of activities you're on up to on the internet i understand your argument but let me ask you this question why do you know we had a case about ten years ago called forster where we he specifically that ip address is not one does not have a reasonable expectation of privacy in an ip address your honor why given the narrow you know in the carpenter decision supreme court said you know this is a narrow decision we don't there's no issues we don't address they specifically say you continue to sanction the approach in smith which dealt with pen registers and our decision in forester specifically relied on smith so two from and i p address your honor in forester the government already knew the defendant's identity so they asked for a pen register analog which only allowed the government to ascertain the names of the websites or the ip addresses of the websites visited so just the website and not any content searches or and not any content contributions to from addresses of the email and the total volume of information there was no ability with what went on in forester to ascertain specific searches browsing history search terms anonymous contributions to websites and actually in forster the court said look i this did give the government the ability to ascertain content if it did not just give the website visited but the search is conducted within that website or the pages viewed within that web site then that would be a very different appeals we're not at liberty to analysis and now analyze whether the rd party doctrine should apply because that was you know straight law at that time carpenter changed that and said we have to really look at this what was an issue a carpenter's was seven days document getting that information because they said people have a right to privacy in their location and where they're going well that's part of it but it's also but also the concern of the majority and carpenter and the majority of riley was w where you visit reveals about you are familial sexual political religious associations and even though they couldn't pinpoint that in carpenter the court was very concerned that you know the police may be to get a good idea of where you're visiting what kind of private activities are you are engaging in well online once they know who that who you who the ip address is linked to they can tell exactly what website technologically savvy people in our police department i mean we have a lot of money didn't you challenge why couldn't you mood to suppress the information that's been tainted after the if after the identification if there were no warrant sought for that to me that would be the logical way to attack this is to if you're if your complaint is about the information that's gone after the identification is to attack that portion of the police investigation as opposed to saying that the identity is protected well your honor the the problem with that is that sometimes if the police are surveilling you without a good reason no one's ever going to know about that it's not going to be introduced as evidence in court they're just going to be surveilling you so there needs to be a warrant requirement so that police do not abuse this power because as it stands now once they get that the remedy for a th a minute violation is suppression of evidence that she used in a criminal case i think you're kind of to me you're kind of asking us to make the global th amendment ruling even when there is no criminal case that results from the police conduct or yes your honor because the th amendment really is the supreme court has explained over and over again doesn't really have to do with suppressing evidence in criminal cases it has to do with protecting the privacy rights of citizens protecting citizens against surveillance by the government and you know protecting against intrusions into  over the issue doesn't it have to be in a concrete factual setting we can't just say we're going to hold that the police about have violated the th amendment if they look if they have the potential to look at all of this information that would be a really big extension of the th amendment going outside a particular criminal case or outside of a civil case where there's been an invasion of privacy assertion to just say because there's a possibility that this may be abuse the th amendment is trigger well yes sure and i think that is exactly what the th amendment is supposed to do that's exactly what the supreme court has said that it  need to enforce the degree of privacy that was enforced at the at the founding and as we continue to have reasonable expectations of privacy and i certainly doubt that the framers would have approved of government officials being able to go online and see exactly the most intimate details of a household lives based on the circle you know of any circuits that since carpenter came down have any other circuits address this issue no none that i have been able to find and none have addressed these privacy concerns and the information that can be revealed by the linkage of subscriber information with the ip address but they haven't been asked to go that far but several courts have ruled that sort of course we didn't deal with a rd party dokken too much but now they do seem to be unanimous well your honor but none of those good none of the cases that i've seen have even considered the the implications for the invasion of privacy and security that is possible i don't think they really just let me think it's any of the technological possibilities the record in this case before the district court there to develop this whole you know what's capable can happen with it if you have  ip address no your honor well they did cite the reid case the new jersey reid case which had held that there is a reasonable expectation of privacy and the subscriber information link to an ip address and the read case does discuss this very concern that the new jersey case a person's rights and that was cited and it was argued that there was a reasonable expectation of privacy in the linkage of this information ok i'll give you some time for  because the defendant spent their time talking about carpenter i'd like to start with the carpenter issue in this case and i think there are a couple factual distinctions that should be made between what the police conduct was in carpenter and what the police conduct was in this particular case is there important distinction in this case the state actors guide a grand jury subpoena for the subscriber information the susi did with an ip address that  was flagged by a o l and went through nicknack and then was referred to the local authorities for prosecution the what they obtained from that grand jury subpoena was the subscriber name which in this case was a business in the address where that ip address was assigned to meaning the anyone using accessing the internet in that residence would have that ip address that's it following state receiving that information there is then a actual search warrant for that residence in the case proceeded on that is markedly different from what happened in the carpenter case in the carpenter case the government to using administrative subpoena has received somewhere between seven and one hundred and twenty seven days of cell site data that allowed them to track individual an individual cell phone which presumably was on the individual and in fact put him in a location close to various robberies that had occurred i believe of the mobile and other radio shack and i believe a few other businesses and the supreme court's concern  h the government being able to obtain that information without a search warrant was that it could be extended detail a log of a person's movements over several years and their concern in that case was that there needed to be some sort of showing of probable cause in order to be able to invade someone's privacy such as to track them over an extended period of time that's not what happened in this case so let me let's just back up for just a moment so i can make sure i understand thoroughly what happened here so what specifically was referred to the police department the local police department what information was conveyed to them the information that was contained within the nic nic the national center for missing and exploited children the information contained within their tips that resulted from a o l stips of the information that was included in there was the information provided from a o l which included the ip address that was flagged by you know well as having sent child pornography the information was geo located to tucson arizona where the defendant in this case and the attachment itself that was part of the e mail that was sent was included as well as my understanding is the content of the e mail but not in the way that we would traditionally think of the content  person what they were seeking was information on who was essentially paying the internet whether it was a person or business for the night so then with the location information i they would have the ip address associated with a particular location addresses to particular individual absolutely sometimes it's to an individual sometimes it could be for example starbucks who has free internet for individuals who are at starbucks and anyone can connect to that internet and therefore would reflect that they're using that ip address so sometimes it's a business sometimes it's an individual sometimes it's an individual cell phone it just depends on the nature of where that device or what device is connecting to the internet and what location let me ask you this with with with even with the location information what is a possible work at the local police have done with that ip address that they have been alerted to i guess i don't understand i'm not sure that the record is developed about what technological abilities can be just having an ip address what you can do with that i address there's nothing in the record about that and to be completely honest i'm not entirely sure that i know what what law enforcement has the ability to do if they have a particular individual's ip address probably at least nd person in this room seems to me if you had the ip address the e mail you could write to the sender well just email just because you have the ip address doesn't necessarily mean that you have the email address no your honor in this case the information was provided was this particular e mail address was using this particular ip address at a specific time but generally speaking no you would not get an email address just because you had someone's ip address there would potentially be a circumstance where that would happen if that was the email address used to register with the internet service provider for example but  you anyone can have multiple different email addresses that they access from their home computer and the email in and of itself is not tied to a specific ip address  address in and of itself to be able to adequately provide the court with that information i will tell the court that for example in the smith case or actually and in forster for example the in that case the government or the law enforcement was a teen in all of the ip addresses that were conned that the known ip address was contacting and so in that case it was considerably more information being provided to the government  in administrative process that in this case and in that case the government was able to obtain all of the websites for example that a particular ip address accessed through an administrative process which is substantially more information than what was  d in this case so i guess the counsel is saying is that the police should have obtained a warrant when they went to get the with they have the ip address and they want to link it understand right because then when you had to they could then do all this sort of historical analysis of where where somebody went on the internet is that way you understand that is what i understand their argument to be yes your honor that with that well they they have the we already got the government already had the ip address so if the concern is that linking it to a specific address and person and person well in this case it was not a person it was a business right then but if the concern is that the law enforcement could go out and collect all this information that could be done with the information that was provided already which was the ip address so they had they had the ip address and the email address from this particular they had an e mail and an e mail address on or yes and so that if the concern is that they could the law enforcement would be using that ip address to track this individual through the internet that could have been that that i can be done without ever needing to use  and the location they could attempt to determine who actually was using them well ya know what they did in this case is they got a search warrant for the residence that was associated with the ip address in an attempt identify the individual that was engaged in the trading of child pornography so yes the law enforcement was attempting to identify that person in the st step after receiving the location information was to get a search warrant for that residence to look for evidence of who that individual was the intent of it's holding is to apply to you know information that is obtained over a long period of time that allows the government to track an individual without a warrant which is again as i pointed out  the defendant in this case was not addressed before the district court this court's holding in guerrero just a few months ago is directly on point with that without a showing of good cause it's deemed waived the only good cause that's been asserted in the reply brief in this case is an oversight which this is not good cause the final issue raised by the defendant in this case is whether or not there was probable cause for the search warrant for the residence associated with the i address under this court's holding in hey there was substantial probable cause that the detective in this case articulated multiple different factors of why he believed that there would be evidence in the place that they sought to search v the search warrant and in any event good good faith would apply if this court would determine that there is not adequate information contained within the search warrant to establish probable cause and absent any other questions the government  you attempt to answer some of the questions asked by the court i didn't know much about this either until i started working on this case but what happens is that an ip address can be used as a search term to find out where you've been on the air internet information we got an ip address we have an e mail address looks like there might be child pornography going on here some sort of what do they do well your honor why can't think when they must have ticked highly technological people that they could call upon to say well well when we search what can we do an internet search with a site yes well the e mail address did not use anybody's real name yeah i did but didn't get any information they don't know who's ip address that is or who's what household it belongs to intel they get that information from the internet service provider as of this point in time that information is not public the only person or entity who knows that is the internet service provider that's why we maintain you the police should have to get a warrant to get that information from the internet service provider in order to make sure they have a legitimate reason for finding out exactly what household is did that particular internet activity are engaged in that activity and to make sure that they can't go back and monitor what that household has been doing the same as before and it's  this earlier yes in your view is what's critical here yes and i would point the court to the you know in the argument is that i you know my internet i have a reasonable expectation of privacy when i get in in what well when a when a person goes on line you know when i go online i have a reasonable expectation of privacy that well for example say when i said i was looking as if like afflicted with a disease and goes online to search for certain kinds of pancreatic cancer or sexually transmitted diseases the only thing that's being shared when we do that is a string of numbers and nobody knows who that those numbers are associated with except for the internet subscriber wants the police are able to figure out who has subscribed to that ip address then they know what you've been doing on the internet i would also point out that they're not doing anything close to that in this case but they could find out in force or here without a warrant and a limit limits that the court could place in a warrant the police can do whatever they want with that information they can find out what you've been doing for three or four months before they get the subscriber information that we're talking about well we're talking about not sharing it with the government the th amendment is particularly concerned with government surveillance and government intrusions on individuals it's a reasonable expectation of privacy advertising to well they target it through the ip address so all they need to know is the ip address in order to do that and so that's what the internet service provider gives them and that's why you know you may you may get ads that you're not interested in because your son or your grandson interested in something that you have fights the question as to whether or not there is an expectation of privacy in that ip address where your honor i have tried to explain today and in the briefs and i would ask the court to review the spencer decision which does analyze this issue head on also the decision in new jersey actually tackles this issue and in this instance the evidence should be suppressed because of all the laws th honor could i get a phone call i see the display of phone number it's an obscene phone call to me that i have to get a warrant to find out who owns that phone number and she think very analogous i think the answer is and do yes the star communications act i believe in the telecommunications act protects against that there's a th amendment or a th amendment protected well again the th amendment protects against the kind of online surveillance that is possible that's just one instance but what's possible here is to do searches and find out what an individual has done previously for months and what an individual or in the case does in the future ok thank you we let you have we've explored this issue pretty thoroughly thank you counsel appreciate your arguments this morning the matter submitted