Appellate Court Rules on Question of Whether the Fourth Amendment Protects IP Addresses from Surveillance

The criminal justice system must constantly adapt to changes brought by the increased use of the internet. Legal doctrines that once only applied to physical searches of people’s homes must now regulate “virtual” searches. Several years ago, federal prosecutors charged an individual with multiple offenses arising from his alleged administration of an online marketplace for illegal drugs and other contraband. It was reportedly the first prosecution involving the drug trade on the so-called “dark net.” A jury convicted the defendant on all seven counts in the government’s indictment, which included drug-related offenses, racketeering, and computer fraud. A judge sentenced him to life imprisonment. In May 2017, a federal appellate court denied his appeal, in which he argued in part that his Fourth Amendment rights had been violated. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

Federal law allows law enforcement to monitor electronic communications under strict limitations. Two types of surveillance allowed by federal law are known as “pen registers” and “trap and trace devices.” A pen register “records or decodes dialing, routing, addressing, or signaling information transmitted by” a telephone or other device. 18 U.S.C. § 3127(3). A trap and trace device “captures the incoming electronic or other impulses,” allowing law enforcement “to identify the source of a wire or electronic communication.” Id. at § 3127(4). Neither device may capture or record “the contents of any communication.” Id. They provide law enforcement with a record that shows the source, destination, and duration of phone calls and other communications.

These surveillance devices require court orders. A federal prosecutor, or a federal or state law enforcement official, must apply to a federal judge. The application must identify the applicant and the law enforcement agency involved in the investigation. The applicant must certify that “the information likely to be obtained is relevant to an ongoing criminal investigation.” Id. at § 3122(b)(2). The order must identify the individual who will be the subject of surveillance, the subject of the criminal investigation (if different), and “the attributes of the communications to which the order applies.” Id. at § 3123(b).

The Ulbricht case involved a website that allowed people to make illegal transactions, such as buying and selling drugs, online. Prosecutors charged the defendant with offenses related to drug trafficking, 21 U.S.C. § 846; computer fraud, 18 U.S.C. § 1030; money laundering, id. at § 1956; and “murder for hire,” id. at § 1958. The defendant appealed his convictions on all counts, arguing in part that the government violated his Fourth Amendment rights by using multiple pen registers and trap and trace devices to identify IP addresses associated with the website.

The appeal centered on the recording of IP addresses, which uniquely identify computers and other devices on the internet. The appellate court rejected the defendant’s Fourth Amendment arguments. It held that IP addresses “are precisely analogous to the capture of telephone numbers,” which has been found to be constitutional. Ulbricht, slip op. at 41.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

If you have been charged with an alleged offense, an experienced and knowledgeable cyber crime lawyer can advise you of your rights and prepare a strong defense for your case. Michael J. Brown has represented defendants in West Texas state and federal courts for more than 20 years. To schedule a confidential consultation to see how we can assist you, contact us today online or at (432) 687-5157.

More Blog Posts:

Court Allows Search Warrant for Entire Email Account Under Stored Communications Act, Texas Criminal Lawyer Blog, June 8, 2017

Defendant in Major Cybercrime Case Sentenced to Life in Prison for Drug Distribution, Hacking, and Money Laundering, Texas Criminal Lawyer Blog, June 22, 2015

Federal Prosecutors Charge Alleged Proprietor of Online Marketplace for Illegal Drugs, Texas Criminal Lawyer Blog, October 3, 2013


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