Vermont: Personally important because it is the State where I get many of my bow ties (along with the ones for the high school mock trial team I coach).
Vermont is legally relevant because it is the land of a state Supreme Court decision on whether you have a legitimate expectation of privacy in IP addresses and warrantless searches of MySpace and Verizon.
The Defendant in State v. Simmons was arrested for stealing a laptop. The appeal focused on whether the subpoena to MySpace and Verizon was a violation of the Vermont Constitution, which offered broader protections then the 4th Amendment. State v. Simmons, 2011 VT 69, NaN-P1 (Vt. 2011).
4th Amendment case law has held that “Internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access.” Simmons, P8, citing, United States v. D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007).
The tip said the alleged thief lived on the same street as the victims who had their computers stolen. Id.
The detective determined through public records the Defendant identity and that one of his neighbors (who had her laptop stolen) had a Verizon Internet account. Id.
The detective conducted informal discovery on Myspace, finding someone by the same name as the Defendant, who lived where the laptops were stolen. Simmons, P3. The photos on MySpace resembled the Defendant’s DMV photo. Id.
The detective served a subpoena MySpace for the Defendant’s IP address. The information from MySpace showed the Defendant’s IP address was a Verizon address. Simmons, P3.
The records from Verizon showed the IP belonged to the neighbor who had her laptop stolen.
The Defendant did not have permission to use the neighbor’s WiFi and the evidence showed he had been accessing her wireless network. Simmons, P4.
The detective then secured a search warrant for the Defendant’s home, where they found the stolen computer. Simmons, P5.
The Defendant moved to suppress the evidence, claiming the IP was private information that required a warrant under the US Constitution and Chapter 1, Article 11 of the Vermont Constitution. The trial court denied the motion. The appeal focused only on the Vermont Constitution. Simmons, P6.
The Vermont Supreme Court affirmed the lower court’s ruling. Simmons, P1. The Court stated:
Nothing in our Article 11 rulings suggest that an internet subscriber address and frequency of use data, unembellished by any personal information, should be treated as private. Article 11 declares that “the people have a right to hold themselves, their houses, papers, and possessions, free from search and seizure.” Vt. Const. ch. 1, art. 11. Absent exigent circumstances not at issue here, Article 11 prohibits a warrantless search of “only those areas or activities that a reasonable person would conclude are intended to be private.”
Simmons, P14, citing State v. Geraw, 173 Vt. 350, 352, 795 A.2d 1219, 1221 (2002).
The Vermont Supreme Court then analyzed whether someone has a legitimate expectation of privacy in an IP address.
Under the Vermont Constitution, a person must have an actual expectation of privacy that society recognizes. Simmons, P15, quoting Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967).
The Court found that IP information could not reasonably be private. As the Court explained:
Given the necessary and willing exposure of an Internet user’s access point identification and frequency of use to third party Internet service providers, such information cannot reasonably be considered confidential, especially when a provider such as MySpace openly declares a policy of disclosure. The information appears no more private than a phone number and the number of calls made, or a street address or post office box and volume of mail, neither of which could plausibly be considered private.
Bow Tie Thoughts
It is important to remember this is a state Supreme Court opinion about a state Constitutional right. However, the logic parallels Federal precedent. Additionally, the case is scheduled for re-arguments and subject to revision.
The established trend in case law is that ISP information is not protected by the 4th Amendment. Moreover, this information lacks actual content of communications. Furthermore, the information is generally limited to IP addresses and number of times an account was accessed.
There will be many cases addressing privacy issues of electronically stored information, such as the warrantless GPS surveillance case to be heard by the United States Supreme Court.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.