Amicus Curiae Brief — Ross William Ulbricht, Petitioner v. United States
Supreme Court briefFeb 5, 2018
Ask Donna
What actually matters in this document.
Text
No. 17-950
In The
Supreme Court of the United States
ROSS WILLIAM ULBRICHT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit
BRIEF OF REASON FOUNDATION, CATO
INSTITUTE, COMPETITIVE ENTERPRISE
INSTITUTE, AND R STREET INSTITUTE AS AMICI
CURIAE IN SUPPORT OF PETITIONER
MANUEL S. KLAUSNER
LAW OFFICES OF MANUEL S.
KLAUSNER
One Bunker Hill Bldg.
601 West Fifth St.
Los Angeles, CA 90071
(213) 617-0414
mklausner@klausnerlaw.us
February 2018
BRADLEY A. BENBROOK
Counsel of Record
STEPHEN M. DUVERNAY
BENBROOK LAW GROUP, PC
400 Capitol Mall, Ste. 2530
Sacramento, CA 95814
(916) 447-4900
brad@benbrooklawgroup.com
Counsel for Amici Curiae
ADDITIONAL COUNSEL FOR AMICI CURIAE
ILYA SHAPIRO
TREVOR BURRUS
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org
JIM HARPER
COMPETITIVE ENTERPRISE INSTITUTE
1310 L St. NW, 7th Floor
Washington, D.C. 20005
(202) 331-1010
jim.harper@cei.org
CHARLES DUAN
R STREET INSTITUTE
1212 New York Ave. NW, Suite 900
Washington, D.C. 20005
cduan@rstreet.org
i
QUESTION PRESENTED
Does the Fourth Amendment permit the government to track and monitor citizens’ Internet
browsing activity without a warrant?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ...……………………....
i
TABLE OF AUTHORITIES …………….………....
iv
INTEREST OF AMICI CURIAE ………….….......
1
INTRODUCTION AND SUMMARY OF
ARGUMENT……….…………………….................
3
BRIEF BACKGROUND ON THE
RELATIONSHIP BETWEEN IP ADDRESSES
AND WEBSITES …………………………………...
5
ARGUMENT ………………………………………...
7
I.
Internet Usage Is Literally Essential To
Much Of Modern Life, So The “Assumed
Risk” Premise Underlying The
“Third Party” Doctrine Cannot Be Fairly
Applied To It .............................................
8
A. “Assuming Risk” Implies Choice ........
9
B. Americans Have No Choice Regarding
Whether to Use the Internet if They
Wish to Be Productive Members of
Society ................................................. 11
II.
The Second Circuit, Like Other Courts,
Inexplicably Concluded That An IP
Address Reveals No “Content”—Despite
The Link Between The Address And A
Particular Website ...................................
15
iii
III.
The Statutory Authorization For Pen/Trap
Data Seizure Imposes Almost No Limits
On Government Attorneys’ Discretion .... 23
CONCLUSION ......................................................
26
iv
TABLE OF AUTHORITIES
Cases
Carpenter v. United States, cert. granted,
No. 16-402 (argued Nov. 29, 2017) .......................... 5
City of Ontario v. Quon,
560 U.S. 746 (2010) ............................................ 8, 12
Hoffa v. United States,
385 U.S. 293 (1966) ............................................ 9, 12
In re Application of United States for an Order
Authorizing Use of a Pen Register & Trap,
396 F. Supp. 2d 45 (D. Mass. 2005) ......................... 6
Katz v. United States,
389 U.S. 347 (1967) ................................................ 16
Kyllo v. United States,
533 U.S. 27 (2001) .......................................... 3, 7, 23
Lopez v. United States,
373 U.S. 427 (1963) ............................................ 9, 12
Maryland v. King,
569 U.S. 435 (2013) .................................................. 9
Minnesota v. Carter,
525 U.S. 83 (1998) .................................................. 10
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ............................................ 12
Riley v. California,
134 S. Ct. 2473 (2014) .......................................... 3, 7
v
Smith v. Maryland,
442 U.S. 735 (1979) ........................................ passim
United States v. Christie,
624 F.3d 558 (3d Cir. 2010) ................................... 18
United States v. Forrester,
512 F.3d 500 (9th Cir. 2008) .................. 6, 18, 19–20
United States v. Fregoso,
60 F.3d 1314 (8th Cir. 1995) .................................. 23
United States v. Hallmark,
911 F.2d 399 (10th Cir. 1990) ................................ 24
United States v. Jacobsen,
466 U.S. 109 (1984) ................................................ 16
United States v. Jones,
565 U.S. 400 (2012) .................................. 3, 7, 22–23
United States v. Perrine,
518 F.3d 1196 (10th Cir. 2008) .............................. 18
United States v. Ulbricht,
858 F.3d 71 (2d Cir. 2017) .......5, 8–9, 15–16, 17–18
United States v. White,
401 U.S. 745 (1971) .................................................. 9
Walter v. United States,
447 U.S. 649 (1980) ................................................ 16
vi
Statutes
18 U.S.C. § 2510 ......................................................... 17
18 U.S.C. § 3122 ............................................. 23, 24, 25
18 U.S.C. § 3123 ......................................................... 25
18 U.S.C. § 3127 ..................................................... 6, 17
Other Authorities
Chief Justice John G. Roberts,
2014 Year-End Report on the Federal Judiciary
(Jan. 2015). ............................................................. 15
Escaping Fourth Amendment Doctrine After Jones:
Physics, Law, and Privacy Protection, 2011–2012
Cato Sup. Ct. Rev. 219 (2012) .................................. 7
Laura K. Donahue, Bulk Metadata Collection:
Statutory and Constitutional Considerations, 37
Harv. J. L. & Pub. Pol’y 757 (2014) ................. 24–25
Laura K. Donahue, The Fourth Amendment in a
Digital World, 71 N.Y.U. Ann. Surv. Am. L. 533
(2017) .................................................................. 9, 22
Matthew J. Tokson, The Content/Envelope Distinction in Internet Law,
50 Wm. & Mary L. Rev. 2105 (2009) ..................... 19
U.S. Dep’t of Justice, U.S. Attorneys’ Manual
§ 9–7.500 ............................................................. 6, 20
1
INTEREST OF AMICI CURIAE1
Reason Foundation is a national, nonpartisan,
and nonprofit public policy think tank, founded in
1978. Reason’s mission is to advance a free society by
applying and promoting libertarian principles and
policies—including free markets, individual liberty,
and the rule of law. Reason supports dynamic market-based public policies that allow and encourage
individuals and voluntary institutions to flourish.
Reason advances its mission by publishing Reason
magazine, as well as commentary on its websites,
and by issuing policy research reports. To further
Reason’s commitment to “Free Minds and Free Markets,” Reason selectively participates as amicus curiae in cases raising significant constitutional issues.
The Cato Institute was established in 1977 as a
nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s
Robert A. Levy Center for Constitutional Studies was
established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes
books and studies, conducts conferences, produces
the annual Cato Supreme Court Review, and files
amicus briefs.
Rule 37 statement: All parties were given timely notice and
have consented to the filing of this brief. No party’s counsel authored this brief in any part. No person other than amici, their
members, or their counsel made a monetary contribution to its
preparation or submission.
1
2
The Competitive Enterprise Institute (“CEI”) is a
non-profit public policy organization dedicated to advancing the principles of limited government, free
enterprise, and individual liberty. CEI publishes research and commentary on the intersection of property rights, markets, free enterprise, and liberty.
The R Street Institute is a non-profit, nonpartisan public-policy research organization. R
Street’s mission is to engage in policy research and
educational outreach that promotes free markets, as
well as limited yet effective government, including
properly calibrated legal and regulatory frameworks
that support Internet economic growth and individual liberty. R Street’s particular focus on Internet law
and policy is one of offering research and analysis
that show the advantages of a more market-oriented
society and of more effective, more efficient laws and
regulations that protect freedom of expression and
privacy.
This case concerns amici because it involves the
increasingly common government practice of gathering Internet browsing activity through “pen/trap” devices without first obtaining a warrant. Given the
necessity of Internet usage in modern life, amici do
not agree that American citizens should be deemed
to consent to turning over their browsing history to
the government as a condition of using the Internet.
3
INTRODUCTION
AND SUMMARY OF ARGUMENT
When the government uses a “pen/trap” device
without a warrant to collect the Internet Protocol
(“IP”) addresses associated with a citizen’s Internet
browsing over time, it is conducting an unreasonable
seizure, so this practice generally violates the Fourth
Amendment.2 This brief aims to demonstrate why
various assumptions underlying Fourth Amendment
doctrine do not apply to the warrantless seizure of
data revealing the IP addresses a citizen visits while
using the Internet.
In particular:
1. The Second Circuit’s decision, like other recent
decisions, applied Fourth Amendment “third party
doctrine” to a pen/trap’s collection of IP addresses
visited during Internet browsing. This doctrine
arose from the theory that when one discloses illegal
activity to a third party, they “assume the risk” that
the third party will disclose that illegal behavior to
the government. Along the way, the theory was generalized to say that disclosure of any information,
The Court’s analysis must be anchored in the Fourth
Amendment’s text and its original understanding. “[A]t bottom,
[the Court] must ‘assur[e] preservation of that degree of privacy
against government that existed when the Fourth Amendment
was adopted.’” United States v. Jones, 565 U.S. 400, 406 (2012)
(quoting Kyllo v. United States, 533 U.S. 27, 34 (2001)). “Whatever new methods of investigation may be devised, [the Court’s]
task, at a minimum, is to decide whether the action in question
would have constituted a ‘search’ within the original meaning of
the Fourth Amendment.” Id. at 406 n.3. And “[a]s the text
makes clear, the ultimate touchstone of the Fourth Amendment
is ‘reasonableness.’” Riley v. California, 134 S. Ct. 2473, 2482
(2014) (internal citation and quotation marks omitted).
2
4
legal or illegal, to a third party assumes the risk of a
subsequent disclosure to the government.
Inherent in the concept of assumed risk, however,
is the notion of choice: one must choose whether to
disclose the information if they can fairly be said to
assume any risk. That assumption is lacking, however, when it comes to whether to use the Internet
and thereby disclose your browsing history to an Internet service provider. Using the Internet is a necessity of modern life for any citizen hoping to participate as a functioning member of society. Surely
the third party doctrine has been stretched beyond
its limit when engaging in such a necessity of life is
said to constitute a conscious “choice” to disclose information to a third party, and that such disclosure
“assumes the risk” that the government will force
the third party to hand it over.
2. The Second Circuit likewise relied on the socalled “content/non-content” distinction underlying
Fourth Amendment doctrine in concluding that no
search or seizure occurred here. Because, in its view,
“routing” information revealed in an IP address does
not reveal “content,” the Fourth Amendment is not
implicated. But this superficial approach ignores reality: an IP address is readily converted to a particular website, which reveals at least some of the “content” a citizen is viewing on the Internet. A particular website may have many pages, in which case an
IP address alone may not reveal precisely all of the
content a person viewed at a website, but that does
not mean the IP address reveals zero content. Yet
that appears to be the conclusion reached in the
court below.
5
Finally, we briefly review the statutory scheme
authorizing pen/trap seizures to demonstrate that (a)
the judicial oversight of government pen/trap applications is ministerial, (b) the statute authorizes essentially any federal or state agency conducting a
criminal investigation to obtain such an order, and
(c) the scope is incredibly broad both as to subject
matter and time. In short, the process is no substitute for a warrant.
Amici agree with Petitioner’s suggestion that this
case should, at a minimum, be held pending the decision in Carpenter v. United States, cert. granted, No.
16-402 (argued Nov. 29, 2017) (historical cell site location data). Yet this case presents its own unique
issues and compelling reasons for review.
BRIEF BACKGROUND ON THE
RELATIONSHIP BETWEEN
IP ADDRESSES AND WEBSITES
When the government engages in pen register
and trap-and-trace surveillance, it gathers, among
other things, the IP addresses that the monitored citizen visits and the outgoing and incoming Internet
routing data for a person’s e-mail and other communications. See United States v. Ulbricht, 858 F.3d 71,
83 (2d Cir. 2017) (“The [pen/trap] orders authorized
law enforcement agents to collect IP address data for
Internet traffic to and from Ulbricht’s home wireless
router and other devices that regularly connected to
Ulbricht’s home router.”).
This brief focuses, in particular, on the government’s collection of IP addresses. In many cases, it is
a simple matter to convert an IP address into a website. Say, for example, a pen register captures a citizen viewing IP address 141.105.69.239. Government
6
agents can copy and paste that address into any
number of free online databases and learn, instantaneously, that the citizen is looking at the WikiLeaks
website, while a person viewing 35.162.89.225 is
looking at Reason.org.3
To be sure, knowing only an IP address associated
with a website does not allow the government to
know exactly which web pages within the particular
website a citizen visits, each of which has its own
Uniform Resource Locator (“URL”). But the government can still learn a substantial amount about a
person’s web browsing simply from the home pages
she visits.
While the government appears to take the position that in extreme cases it can obtain a complete
web browsing history, including every page (URL)
visited, see U.S. Dep’t of Justice, U.S. Attorneys’
Manual § 9–7.500, multiple courts have acknowledged that government seizure of that data would
raise serious Fourth Amendment concerns. United
States v. Forrester, 512 F.3d 500, 510 n.6 (9th Cir.
2008) (“Surveillance techniques that enable the government to determine not only the IP addresses that
a person accesses but also the [URL] of the pages visited might be more constitutionally problematic.”); In
re Application of United States for an Order Authorizing Use of a Pen Register & Trap, 396 F. Supp. 2d
45, 49 (D. Mass. 2005). That sort of seizure would also plainly violate 18 U.S.C. § 3127(3) and (4), which
Reverse IP lookup is available at any number of websites.
For example, a search using Uwebtools.com’s IP Address
Search, ip.uwebtools.com, tells you that IP address
160.111.244.22 belongs to the Smithsonian Institution, located
in Washington, D.C.
3
7
prohibit the government from obtaining the “contents” of any communication gathered in a pen/trap
data seizure. See below, Section III.
Because the government is doubtless aware that
there is no Fourth Amendment justification for the
warrantless collection of a complete browsing history
of every web page a citizen visits, it appears to generally limit its pen/trap data seizure to IP addresses.
In other words, the Court is not likely to face a case
that raises the issue of warrantless seizure of Internet browsing history in any starker terms than this
case.
ARGUMENT
This case asks the Court to once again grapple
with how to reconcile the Fourth Amendment’s guarantee against unreasonable searches and seizures
with advancements in technology. See, e.g., Kyllo v.
United States, 533 U.S. 27 (2001) (thermal imaging);
United States v. Jones, 565 U.S. 400 (2012) (GPS
tracking); Riley v. California, 134 S. Ct. 2473 (2014)
(search of digital information on a cell phone). In
Carpenter, an amicus group heavily overlapping with
this one argued for application of the Fourth
Amendment’s text and recognition of property rights
in data to resolve the issues in cases like this one.
Here, we illustrate how fraught it is to use “reasonable expectation of privacy” doctrine and particularly
its derivative, the third-party doctrine.4
For one view on how to update Katz’s reasonable expectation of privacy test for the modern world, see Jim Harper, Escaping Fourth Amendment Doctrine After Jones: Physics, Law,
and Privacy Protection, 2011–2012 Cato Sup. Ct. Rev. 219
(2012).
4
8
The Court has long recognized that technological
advancements shape societal expectations of privacy.
“Rapid changes in the dynamics of communication
and information transmission are evident not just in
the technology itself but in what society accepts as
proper behavior.” City of Ontario v. Quon, 560 U.S.
746, 759 (2010). This dynamic relationship thus
shapes both privacy expectations and “the degree to
which society will be prepared to recognize those expectations as reasonable.” Id. at 759–60.
I. Internet Usage Is Literally Essential To
Much Of Modern Life, So The “Assumed
Risk” Premise Underlying The “Third Party” Doctrine Cannot Be Fairly Applied To It.
When the government monitors, accumulates,
and analyzes a citizen’s Internet browsing activity—
even limited to IP addresses—that is a seizure. The
Second Circuit relied on the Fourth Amendment case
law’s “third party doctrine” to conclude otherwise.
The circuit court analogized the collection of information here to Smith v. Maryland, 442 U.S. 735
(1979), which found no Fourth Amendment violation
when police executed the warrantless collection
through a “pen register” of a list of phone numbers
the suspect was dialing. Because collecting IP addresses is supposedly similar, “no reasonable person
could maintain a privacy interest” in their Internet
traffic information, so therefore no Fourth Amendment interest is implicated. Ulbricht, 858 F.3d at 97.
In the circuit court’s view, Internet users “voluntarily” turn over their browsing information to third parties (Internet service providers) for the purpose of directing and routing their Internet activity, so they
9
surrender any Fourth Amendment rights they may
have regarding that same information. Id. at 96.
This is a modern take on the “third party” doctrine, which is a far cry from its original conception.
A. “Assuming Risk” Implies Choice.
The third party doctrine first arose in government-informant cases. Laura K. Donahue, The
Fourth Amendment in a Digital World, 71 N.Y.U.
Ann. Surv. Am. L. 533, 640–46 (2017); Richard M.
Thompson II, Congressional Research Service Report
For Congress, The Fourth Amendment Third-Party
Doctrine 7–9 (2014). The notion was that parties “assumed the risk” that, when they disclosed their criminal activities to third parties, those third parties
would pass that information to the government. See
Lopez v. United States, 373 U.S. 427, 439 (1963)
(“[T]he risk that petitioner took in offering a bribe to
Davis fairly included the risk that the offer would be
accurately reproduced in court”); Hoffa v. United
States, 385 U.S. 293, 302 (1966) (observing that “the
Fourth Amendment [does not] protect[ ] a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”);
United States v. White, 401 U.S. 745, 752 (1971)
(“[O]ne contemplating illegal activities must realize
and risk that his companions may be reporting to the
police. If he sufficiently doubts their trustworthiness,
the association will very probably end or never materialize. But if he has no doubts, or allays them, or
risks what doubt he has, the risk is his.”); Smith, 442
U.S. at 743–44 (“This Court consistently has held
that a person has no legitimate expectation of privacy in information he voluntarily turns over to third
parties.”).
10
It is worth noting that these early cases focused
on the assumed risk inherent in the disclosure of illegal activity to third parties, not simply the passing
of any information to third parties. But at the risk of
sounding quaint, it’s also worth noting that the
Fourth Amendment exists to protect the innocent
among us. See, e.g., Maryland v. King, 569 U.S. 435,
482 (2013) (Scalia, J., dissenting) (“[T]he Fourth
Amendment’s protections ought to be most jealously
guarded” for “people who are innocent of the State’s
accusations.”); Minnesota v. Carter, 525 U.S. 83, 110
(1998) (Ginsburg, J., dissenting) (“If the illegality of
the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little
force in regulating police behavior toward either the
innocent or the guilty.”).
In any event, given the ultimate task under the
text of the Fourth Amendment is determining
whether a search or seizure is reasonable, the question here is this: Is it reasonable to say that the ordinary citizen “assumes the risk” that their Internet
browsing activity will be monitored by the government with a pen/trap device every time they log on to
the Internet? The answer is plainly “No.”
In his dissent in Smith, Justice Marshall questioned the application of the third party doctrine to
the collection of a list of phone numbers the suspect
called. The majority determined that by “us[ing] his
phone,” the petitioner “voluntarily conveyed numerical information to the telephone company” and “assumed the risk” that the company would turn over
those numbers to the police. 442 U.S. at 744–45. As
Justice Marshall pointed out, however, the concept of
assuming risk implies “some notion of choice” that,
11
he believed, wasn’t realistically applied to telephone
usage:
[U]nless a person is prepared to forgo
use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. It is idle to speak of “assuming”
risks in contexts where, as a practical
matter, individuals have no realistic alternative.
442 U.S. at 750 (Marshall, J., dissenting) (citations
omitted).
We turn now to whether the third party doctrine’s
foundational assumption of choice can fairly be applied to Internet usage.
B. Americans Have No Choice Regarding
Whether to Use the Internet if They
Wish to Be Productive Members of Society.
In a popular television commercial urging customers to change Internet service providers, actor
Mark Wahlberg stands in a kitchen and points to a
sandwich, a glass of water, and an iPad while explaining: “Food. Water. Internet. We need it to live.”
AT&T TV & Internet Servs., AT&T Internet TV
Commercial, ‘No Extra Fees’ Feat. Mark Wahlberg,
Anjelica
Huston
(2017),
online
at
https://www.ispot.tv/ad/wAt9/at-and-t-internet-noextra-fees-feat-mark-wahlberg-anjelica-huston.
It
sounds funny, because it’s true.
Using the Internet is central to everyday life–
much more so than using the phone when Smith was
decided in 1979. It simply cannot be said that a per-
12
son voluntarily chooses to surrender privacy by engaging in Internet browsing when there is no alternative. Indeed, looking back at the origins of the
third party doctrine, it is bizarre to analogize logging
on to the Internet to offering a bribe, Lopez, 373 U.S.
at 439, or keeping an associate up-to-date on all the
crimes one is committing. Hoffa, 385 U.S. at 296 n.3.5
To be sure, using the Internet is not a necessity
because “everyone” is on fun social media networks
like Facebook. But see Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (observing that the
Internet is “the most important place[ ] (in a spatial
sense) for the exchange of views” and citing Facebook’s reach). Nor is it a necessity because “everyone” uses text messaging. Cf. Quon, 560 U.S. at 760
(“Cell phone and text message communications are
so pervasive that some persons may consider them to
be essential means or necessary instruments for selfexpression, even self-identification.”).
Rather, using the Internet is essential to participate as a functioning member of society—there literally is no alternative. Consider one limited example.
Imagine a teenager in California who dreams of becoming a lawyer and maybe one day even a judge:
College. If our young student hopes to attend a
public university in California, she must use the Internet. The University of California system only processes applications online. University of California,
How to Apply, online at http://admission.
universityofcalifornia.edu/how-to-apply/index.html
(“Applications must be submitted online by the last
Gone too is the notion of choice in the third party’s subsequent disclosure to the government. See Section III below.
5
13
day of the filing period.”).6 The same goes for the California State University system. The California State
University, Press Release, CSU Launches New Cal
State Apply Application Portal (May 16, 2017), online
at https://www2.calstate.edu/csu-system/news/Pages/
CSU-Launches-New-Cal-State-Apply-ApplicationPortal.aspx (“Beginning June 1, 2017, the current
portal, CSU Mentor, will be replaced by Cal State
Apply, a streamlined user-friendly application for all
CSU incoming freshman, transfer, graduate and international students.”).7
Getting Into Law School. If our ambitious youngster were graduating from college in 2018 and applying for law school, she appears to have no choice but
to do so through the Law School Admission Council’s
website. “Nearly all ABA-approved law schools . . .
require the use of LSAC’s Credential Assembly Service (CAS) for JD applicants.” Law School Admission
It appears that even non-citizen applicants living in the
United States with no legal status have to use the online application for the University of California system. Univ. of Cal.,
Undocumented Student Resources, Applying to UC, online at
http://undoc.universityofcalifornia.edu/applying-to-uc.html (“We
don’t want the application fee to get in the way of you applying
to UC. . . . You can apply for a fee waiver within the online application and be notified immediately whether you have qualified.”).
6
Once at school, our student has no hope of thriving without
Internet access. Many schools facilitate classes through an
online learning management systems. U.C. Berkeley, for example, uses a platform called bCourses. Professors use the system
to distribute course information to students, and students submit assignments through the platform and interact with each
other through online learning modules. U.C. Berkeley Educ.
Tech. Servs., bCourses, online at https://www.ets.berkeley.edu/
services-facilities/bcourses.
7
14
Council, So You Want to Go to Law School. What’s
Next?, online at https://os.lsac.org/Logon/Access.aspx;
see also University of California, Berkeley School of
Law, Applying for the J.D. Degree, online at
https://www.law.berkeley.edu/admissions/jd/applying
-for-jd-degree/ (“The application process begins when
you visit the Law School Admission Council website,
where you must establish an account, register for the
Law School Admission Test (LSAT), and submit an
application . . . . ”); Stanford Law School, JD Application Process, Application Process at a Glance, online
at
https://law.stanford.edu/apply/how-to-apply/jdapplication-process/ (“You must complete the entire
application form and submit it electronically through
LSAC.”).
Becoming a Lawyer and Practicing Law. In California, law school graduates may only apply to take
the bar exam online. The State Bar of California,
Admission
Requirements,
online
at
http://www.calbar.ca.gov/Admissions/Requirements.
The same goes for the District of Columbia. The District of Columbia Bar, How to Join, online at
https://www.dcbar.org/membership/how-to-join.cfm.8
And, of course, more and more courts are requiring online filing of papers in litigation matters. See,
e.g., U.S. District Court for the Central District of
In order to remain in good standing by paying dues, a California lawyer has to check her online profile in order to know
how much to pay. See The State Bar of California, Fee Statement, online at http://www.calbar.ca.gov/Attorneys/MemberRecords/About-Your-State-Bar-Profile/Fees-Payment
(“Beginning in 2017, the State Bar launched a new online billing and
payment application for annual fees. As a result, paper billing
statements are no longer mailed to attorneys. Instead, statements are available online through My State Bar Profile.”).
8
15
California, Local Rule 5-4.1 (“attorneys are required
to file documents electronically” in all civil cases).
Indeed, Chief Justice Roberts has hailed the trend of
moving litigation online through the case management and electronic case filing (“CM/ECF”) system:
CM/ECF is vitally important to the
cause of justice because it can make the
courts more accessible, and more affordable, to a diverse body of litigants,
drawn from every corner of society, who
often enter the courthouse reluctantly,
apprehensively, and only as a last resort.
Chief Justice John G. Roberts, 2014 Year-End Report
on the Federal Judiciary 5 (Jan. 2015).
*
*
*
Does this young person really have a choice as to
whether she uses the Internet if she wants to participate in society? Of course not. The Fourth Amendment should not be marginalized further by pretending as if she does. The “assumed risk” concept underlying the third party doctrine cannot be fairly applied
to Internet browsing.
II. The Second Circuit, Like Other Courts, Inexplicably Concluded That An IP Address
Reveals No “Content”—Despite The Link Between The Address And A Particular Website.
The Second Circuit also relied on the so-called
“content/non-content” distinction—a theory adopted
in many Fourth Amendment cases—to conclude that
the government was free to monitor incoming and
16
outgoing IP address traffic. 858 F.3d at 97–98. The
court accepted the government’s claim that, like telephone numbers captured by a pen/trap or envelope
markings on sealed letters and packages,9 IP addresses are merely routing data that do not reveal
the “content” of what a user is viewing on the Internet—so “no reasonable person could maintain a privacy interest” in them. Id. at 97. While the content/non-content distinction has the apparent virtue
of simplicity, and its application to pen/trap collection of IP addresses seems simple, the courts are getting it wrong.
The content/non-content distinction is an outgrowth of Katz v. United States and Smith. In Katz,
the Court held that the warrantless use of a listening
device to record the contents of a conversation inside
a telephone booth violated the Fourth Amendment:
“No less than an individual in a business office, in a
friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the
Fourth Amendment. One who occupies it, shuts the
door behind him, and pays the toll that permits him
to place a call is surely entitled to assume that the
words he utters into the mouthpiece will not be
broadcast to the world.” Katz, 389 U.S. 347, 352
(1967).
“[S]ealed packages in the mail cannot be opened without a
warrant,” and the government’s “authority to possess a package
is distinct from his authority to examine its contents.” Walter v.
United States, 447 U.S. 649, 654 (1980) (citing Ex parte Jackson, 96 U.S. 727 (1877)). See also United States v. Jacobsen, 466
U.S. 109, 114 (1984) (“Letters and other sealed packages are in
the general class of effects in which the public at large has a
legitimate expectation of privacy; warrantless searches of such
effects are presumptively unreasonable.”).
9
17
This distinction was central to the Court’s decision in Smith, where it rejected the suspect’s attempt
to align his case with Katz: “[A] pen register differs
significantly from the listening device employed in
Katz, for pen registers do not acquire the contents of
communications.” 442 U.S. at 741 (emphasis in original). See also id. at 743 (“Although petitioner’s conduct may have been calculated to keep the contents of
his conversation private, his conduct was not and
could not have been calculated to preserve the privacy of the number he dialed.” (emphasis in original)).
Following these general principles, federal law
governing pen registers and trap-and-trace devices
nominally requires that they not be used to collect
the contents of communications. See, e.g., 18 U.S.C §
3127(3) (defining “pen register” as “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an
instrument or facility from which a wire or electronic
communication is transmitted, provided, however,
that such information shall not include the contents
of any communication”); id., subd. (4) (defining “trap
and trace device” as “a device or process which captures the incoming electronic or other impulses
which identify the originating number or other dialing, routing, addressing, and signaling information
reasonably likely to identify the source of a wire or
electronic communication, provided, however, that
such information shall not include the contents of
any communication”).10
“Contents” is defined as “any information concerning the
substance, purport, or meaning of that communication.” 18
U.S.C. § 2510(8).
10
18
The Second Circuit accepted without apparent
analysis the government’s position that capturing IP
address information reveals no “content.” 858 F.3d at
84 (“an ‘IP address is analogous to a telephone number’ because ‘it indicates the online identity of the
communicating device without revealing the communication’s content’” and “[t]he pen/trap orders thus
did not permit the government to access the content
of Ulbricht’s communications”). Assuming that to be
true, the court decided that collecting IP address information was “precisely analogous to the capture of
telephone numbers” in Smith:
Like telephone companies, Internet service
providers require that identifying information be disclosed in order to make
communication among electronic devices
possible. In light of the Smith rule, no reasonable person could maintain a privacy
interest in that sort of information.
We therefore join the other circuits that
have considered this narrow question and
hold that collecting IP address information
devoid of content is “constitutionally indistinguishable from the use of a pen register.”
858 F.3d at 98 (quoting United States v. Forrester,
512 F.3d 500, 510 (9th Cir. 2008), and collecting cases) (emphasis added).
Accordingly, the Second and Ninth Circuits have
determined that revealing IP addresses of websites
that a person visits does not reveal the “content” of
19
their web browsing.11 Id.; see Forrester, 512 F.3d at
510 (“IP addresses constitute addressing information
and do not necessarily reveal any more about the
underlying contents of communication than do phone
numbers.”).
These decisions reflect a disturbing inability (or
refusal) to recognize that an IP address is so readily
converted to home page URLs for a particular Internet site. As such, of course an IP address reveals content: It reveals that a person visited a particular
website, which in itself reveals content.12
To be sure, if a citizen being monitored by a
pen/trap order clicked through multiple pages at a
particular website, the pen/trap would not reveal all
of that activity. Thus, while knowing an IP address
doesn’t necessarily reveal all of the content a monitored citizen viewed at a website, it plainly reveals
“content.” Some content does not equal zero con-
In a similar vein, other circuits have held that Internet users do not have a reasonable expectation of privacy in their IP
addresses. See United States v. Christie, 624 F.3d 558, 573–74
(3d Cir. 2010); United States v. Perrine, 518 F.3d 1196, 1204–05
(10th Cir. 2008).
11
In some cases, a single IP address is associated with multiple websites. See, e.g., Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. & Mary L.
Rev. 2105, 2148–49 (2009) (noting that “personal” and “smaller”
websites “are more likely to share an IP address with multiple
other sites.”); GoDaddy, What is a dedicated IP?, online at
https://www.godaddy.com/help/what-is-a-dedicated-ip-1053 (“A
dedicated [IP] is a unique Internet address dedicated exclusively to a single hosting account. This is in contrast to the normal
configuration of several hosting accounts residing on a single
server and sharing its IP address.”).
12
20
tent.13 (Moreover, some websites consist of only a
homepage, in which case the IP address reveals all of
the content associated with it. See, e.g.,
107.178.244.221 (DrudgeReport.com)).
Though it seems plain as day that revealing the
website a person visits reveals “content” in this
manner, the Forrester court decided that the failure
to reveal all content was equivalent to the failure to
reveal any content:
Surveillance techniques that enable the
government to determine not only the IP
addresses that a person accesses but also
the uniform resource locators (“URL”) of
the pages visited might be more constitutionally problematic. A URL, unlike an
IP address, identifies the particular document within a website that a person
views and thus reveals much more information about the person’s Internet activity. For instance, a surveillance technique that captures IP addresses would
show only that a person visited the New
York
Times’
website
at
This Court’s website for instance, located at IP address
23.214.57.118, has multiple pages. How can it be said that any
of these pages reveals no “content”? On January 30, 2018, for
example, the Court’s homepage, which may include the least
content on the site, explains that “[t]he Supreme Court Building
is open to the public from 9 a.m. to 4:30 p.m.,” and that “[t]he
Court will next convene for a public session in the Courtroom at
10 a.m. on Tuesday, February 20.” It also includes a Did-YouKnow factoid telling visitors that “Dr. John Rock, a physician,
was the first African American to be admitted to the Supreme
Court Bar on February 1, 1865, on the motion of Senator
Charles Sumner.”
13
21
http://www.nytimes.com,
whereas
a
technique that captures URLs would also divulge the particular articles the person viewed.
512 F.3d at 510 n.6 (emphasis added). Surely the
New York Times would be alarmed by an official
statement of the United States judiciary that its
website reveals no content.14
More broadly, dismissing IP addresses as “noncontent” ignores the wealth of information that our
Internet browsing activity reveals. By looking at outgoing web traffic, for example, you can learn where
someone’s allegiances lie: 140.180.223.22 (princeton.edu) or 171.67.215.200 (stanford.edu). An IP address can tell you a person’s favorite news source
(205.203.132.1, online.WSJ.com), or what they do in
their spare time (04.37.111.126, NRA.org).
14
The U.S. Attorney’s Manual flaunts the non-distinction between IP addresses and URLs in a policy ostensibly aimed at
limiting the collection of data via pen/trap orders to “the noncontent information associated with Internet communications.”
U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9–7.500. Because of “privacy and other [that is, Fourth Amendment] concerns relating to the use of pen register orders” “to collect . . .
the terms that a person uses to request information on the
World Wide Web,” investigators are required to consult with the
DOJ’s computer crime and intellectual property division before
applying for a pen register that may collect URLs directly. Id.
Yet the policy “does not apply to applications for pen register
orders that would merely authorize collection of Internet Protocol (IP) addresses, even if such IP addresses can be readily
translated into URLs or portions of URLs.” Id. In other words,
the U.S. Attorney’s Manual suggests that IP addresses do not
constitute “content” for Fourth Amendment purposes—even if
they can be readily and easily converted into URLs, something
the policy prohibits gathering directly.
22
A snapshot of someone’s browsing activity can reveal political preferences. (You can Make America
Great Again at 104.16.34.178, or Feel the Bern at
104.16.42.58.) An IP address can show a person’s religious affiliations (154.35.160.5, DalaiLama.com) or
lack thereof (104.25.78.100, atheists.org).
And tracking Internet browsing activity over time
paints a much more intrusive picture. A series of visits can tell a story: 208.93.170.15 (WebMD);
104.16.104.168
(Planned
Parenthood);
or
129.176.217.220 (The Mayo Clinic). The statutory
scheme authorizes pen/traps to collect up to four
months of activity over two 60-day periods. See below. In this extended web history lies the intimate
details of our private lives.15
The Internet allows every citizen the opportunity
to have a virtually unlimited library in their own
home. The government’s warrantless collection of the
IP addresses a citizen visits is analogous to a government agent peering through the window to monitor which books a person pulls from their shelf.
While the government actor may not be able to determine exactly which chapters or pages a citizen is
reading—just as an IP address may not disclose exactly which pages of a website the citizen visits—the
government is plainly learning about the “content” of
As Professor Donahue has put it, “[t]echnology . . . is now
blurring the doctrinal [content versus non-content] distinction.”
Donahue, supra, 71 N.Y.U. Ann. Surv. Am. L. at 650. “[D]ata
traditionally considered to be noncontent, such as pen register
and trap and trace data, or envelope information, in light of digital dependence and the growth of social network analytics,
generates a tremendous amount of information about individuals’ relationships, beliefs, and predilections—precisely the interests that the distinction was meant to protect.” Id.
15
23
the citizen’s reading behavior by sitting outside the
window and monitoring, day after day, which books
the citizen pulls from the shelf. By acquiring the data, the government is conducting a seizure. It is also
plainly engaging in a Fourth Amendment search. See
Jones, 565 U.S. at 406 n.3 (“Whatever new methods
of investigation may be devised, our task, at a minimum, is to decide whether the action in question
would have constituted a ‘search’ within the original
meaning of the Fourth Amendment.”).16
III. The Statutory Authorization For Pen/Trap
Data Seizure Imposes Almost No Limits On
Government Attorneys’ Discretion.
There should be no impression here that the application process governing the issuance of pen/trap
orders operates as any meaningful check on the government’s discretion in monitoring Internet usage,
let alone that it serves as the functional equivalent of
a warrant. Rather, as the Eighth Circuit has accurately observed, “[t]he judicial role in approving use
of trap and trace devices is ministerial in nature because, upon a proper application being made under
18 U.S.C. § 3122, ‘the court shall enter an ex parte
order authorizing the installation’ of such a device.
18 U.S.C. § 3123(a).” United States v. Fregoso, 60
“When the Fourth Amendment was adopted, as now, to
‘search’ meant ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to
search the house for a book; to search the wood for a thief.’”
Kyllo, 533 U.S. at 32 n.1 (quoting N. Webster, An American
Dictionary of the English Language 66 (1828) (reprint 6th
ed.1989)).
16
24
F.3d 1314, 1320 (8th Cir. 1995) (additional citations
omitted) (emphasis in original).
The statutory standards governing pen/trap applications set an extremely low bar. Aside from disclosing his or her name to the court, the government
attorney need only provide a certification that “the
information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that
agency.” 18 U.S.C. § 3122(b)(2) (emphasis added).
Federal courts have interpreted the “relevance”
standard as meriting “extremely limited judicial review,” United States v. Hallmark, 911 F.2d 399, 402
(10th Cir. 1990), which effectively gives the government a blank check to conduct a dragnet search of
Internet activity. And because pen/trap orders collect
incoming and outgoing routing information, the government could conceivably make the “relevance”
showing as to any known associate of a suspect, no
matter how remotely he is connected to the subject of
a criminal investigation. Cf. Laura K. Donahue, Bulk
Metadata Collection: Statutory and Constitutional
Considerations, 37 Harv. J. L. & Pub. Pol’y 757, 838–
42 (2014) (discussing the NSA’s bulk collection of data under the Foreign Intelligence Surveillance Act’s
analogous “relevance” standard).17
Professor Donahue quotes Judge Walton of the Foreign Intelligence Surveillance Court, who pointed out how the breadth
of the “relevance” standard enabled the NSA to amass large
amount of data, the “vast majority” of which were not directly
tethered to the subject of an investigation:
17
[N]early all of the call detail records collected
pertain to communications of non-U.S. persons
who are not the subject of an FBI investigation
to obtain foreign intelligence information, [and]
are communications of U.S. persons who are not
25
Importantly, the statute is not limited to the
United States Department of Justice attorneys; any
attorney whose agency is conducting an “ongoing
criminal investigation” can apply. 18 U.S.C. §
3122(b)(2). In addition, a “State investigative or law
enforcement officer may make an application” for a
pen/trap order under the statute as well. Id., subd.
(a)(2). In light of the remarkable growth of state and
federal agencies engaging in criminal investigations
in recent decades, the list of government lawyers
able to use this tool is incredibly long.
The statute further assumes that the standard
pen/trap will collect data for up to four months. An
initial application may seek up to 60 days’ worth of
data, which can be extended for another 60 days with
an updated application making the same minimal
showing. 18 U.S.C. § 3123(c)(1) & (2). The subject of
the pen register in Smith, by contrast, was arrested
two days after the device was installed. Smith, 442
U.S. at 737. Monitoring a citizen’s Internet activity
over such a lengthy period allows the government to
amass information far more extensive and intrusive
than simply collecting the numbers dialed on a rotary phone over the same period of time.
In sum, the statutory scheme increases, rather
than mitigates, the potential for Fourth Amendment
harm.
the subject of an FBI investigation to protect
against international terrorism or clandestine
intelligence activities.
Donahue, Bulk Metadata Collection, 37 Harv. J.L. & Pub. Pol’y
at 839 (quoting In re Production of Tangible Things from [Redacted], No. BR 08–13, at 11–12, 2009 WL 9150913 (FISA Ct.
Mar. 2, 2009)).
26
CONCLUSION
For these reasons, and those stated by the petitioner, the Court should grant the petition for a writ
of certiorari.
Respectfully submitted,
MANUEL S. KLAUSNER
LAW OFFICES OF
MANUEL S. KLAUSNER
One Bunker Hill Bldg.
601 West Fifth St.
Los Angeles, CA 90071
(213) 617-0414
mklausner@klausnerlaw.us
BRADLEY A. BENBROOK
Counsel of Record
STEPHEN M. DUVERNAY
BENBROOK LAW GROUP, PC
400 Capitol Mall, Ste. 2530
Sacramento, CA 95814
(916) 447-4900
brad@benbrooklawgroup.com
ILYA SHAPIRO
TREVOR BURRUS
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org
JIM HARPER
COMPETITIVE ENTERPRISE
INSTITUTE
1310 L St. NW, 7th Floor
Washington, D.C. 20005
(202) 331-1010
jim.harper@cei.org
CHARLES DUAN
R STREET INSTITUTE
1212 New York Ave.
NW, Suite 900
Washington, D.C.
20005
cduan@rstreet.org
Counsel for Amici Curiae
February 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.