4th Circuit: No Expectation of Privacy in Your Internet Subscriber Information

In a child pornography case, the Fourth Circuit recently considered a novel issue (in the Fourth Circuit, at least) in a challenge to whether the Fourth Amendment protects an expectation of privacy in Internet subscriber information.

In United States v. Bynum, the defendant was convicted by a jury of interstate transport and possession of child pornography, federal offenses.  Judge Reidinger, of the Western District of North Carolina, sentenced Bynum to 16 years in prison – a mid-Guidelines sentence for these particular offenses and Bynum’s criminal history (category I).  Bynum appealed to the Fourth Circuit, arguing the district court erred on several issues, however, this blog comment concerns only one of the issues reviewed by the appellate court.

Bynum claimed on appeal that the FBI violated his Fourth Amendment rights by using administrative subpoenas to acquire his Internet subscriber information – i.e., his name, telephone number, email address, and physical address.  To get this information, the FBI went through several links in a chain.  First, the FBI identified the IP address belonging to a frequent user (“markie_zkidluv6”) of a Yahoo! chat room who had uploaded various pictures of child pornography.  After identifying the IP address for “markie_zkidluv6,” the FBI tracked down the Internet provider associated with that IP address and subpoenaed the user’s Internet subscriber information.  Thus, the FBI determined that “markie_zkidluv6” was actually Bynum.

On appeal, Bynum argued that the district court erred, inter alia, by denying his motion to suppress the evidence against him as being the fruit of unlawful administrative subpoenas.  The Fourth Circuit disagreed with Bynum, issuing its opinion on May 5 and finding that Bynum had no subjective reasonable expectation of privacy in the subscriber information he supplied to his Internet provider.  Judge Motz wrote that “Bynum voluntarily conveyed all this information to his Internet and phone companies.  In so doing, Bynum assumed the risk that those companies would reveal that information to police.” (quoting Smith v. Maryland).  Further, Bynum voluntarily included his age, sex, location, and a picture of himself on his Yahoo! chat profile.  Because the FBI’s subpoenas did not invade any legitimate expectation of privacy, the Fourth Circuit found that the FBI did not violate Bynum’s rights under the Fourth Amendment, and the district court correctly denied his motion to suppress.

All in all, this decision is probably the right one, even from a South Carolina criminal defense attorney’s perspective.  We all subject ourselves to a slight loss of privacy when we put ourselves “on the grid” and voluntarily provide personal information to Internet and other service providers in order to become customers.  For someone to give his real name and contact information, access and upload child pornography, and then claim that he had an expectation that his information would be kept private from law enforcement… that really doesn’t seem reasonable.