In the recently handed down decision in United States v. Bynum, 08-4207 (4th Cir. May 5, 2010), the court rejected Defendant’s argument that the Government’s use of administrative subpoenas to obtain subscriber information from his ISP violated his Fourth Amendment rights. In reaching its decision, the court noted that there was no evidence that Defendant “had a subjective expectation of privacy in his internet and phone ‘subscriber information’….” After all, he voluntarily released information to his internet and phone companies and thereby assumed the risk that these companies would reveal this information to the authorities. Moreover, the court noted that even if Bynum was able to demonstrate a subjective expectation of privacy towards this information, it would be subject to an objective reasonableness test. The court notes that “every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.” Lastly, in a footnote the court noted that Defendant did not allege a privacy interest in the IP address the FBI initially obtained from Yahoo!.
In that case, the FBI served an administrative subpoena on Yahoo! seeking the subscriber information and IP address associated with Bynum’s profile after they witnessed someone using Bynum’s profile in a Yahoo! c hat room uploading child pornography. Based on the information provided by Yahoo!, the FBI identified the ISP (UUNET) associated with Bynum’s IP address. The FBI then subpoenaed UUNET and obtained the email address and telephone number for the customer associated IP address that was earlier provided by Yahoo!. Finally, the FBI subpoenaed the phone and internet companies that operated the dial-up service used by the user, which revealed the “physical address from which the uploads emanated”, which happened to be the defendant’s mother’s house. The FBI was also able to access publicly available information from the defendant’s Yahoo! chat profile such as his photo, demographic information, and interests.
Web browsing through a Proxy;
The ease with which the Federal Government can access information about internet users through their IP address raises questions. For instance, how is my right to privacy protected when utilizing a proxy server or other program that hides your IP address and other information about you that is normally retrievable simply because you visited a website? Also, what is the impact on your web browsing privacy when using an anonymous web browsing gateway like that provided by a myriad of sites; ex: anonymizer.com/, hidemyass.com/, ninjacloak.com/, privateproxysoftware.com?
A proxy server works by receiving a request from the party wishing to view the online material through the proxy. The proxy then sends a request to the destination the party wishes to view. It then grabs this material and delivers it to the party seeking to view the material without ever establishing a connection between the party seeking to operate through the proxy and the material which the party is seeking to view.
States may differ from Federal courts on the reasonable expectation of privacy;
Although precedents set by federal case law indicate that there is no reasonable expectation of privacy for Internet service records; some states have taken measures to protect internet users’ privacy interest. For instance, in New Jersey the state constitution does not permit disclosure of such information without a grand jury subpoena. In a New Jersey case dealing with the IP address security issue, the state court required a grand jury subpoena based on the New Jersey state constitutional right of privacy and the fact that the IP address-identity connection is sufficiently private to warrant some protection. A more detailed discussion of the New Jersey requirement of a grand jury subpoena can be found here.