As technology develops and expands, so do the methods used by law enforcement to investigate alleged criminal offenses. This summer, the news media reported on a Colorado couple suspected of taking the wife’s children out of the country in violation of a child custody order. Authorities reportedly located the suspects by tracking their use of online music and video streaming services. Based on the internet protocol (IP) address associated with their accounts, investigators pinpointed their location in Mexico. Colorado authorities reportedly had a warrant for the suspects’ accounts, as required by the U.S. Constitution and the Video Privacy Protection Act (VPPA) of 1988, 18 U.S.C. § 2710. This statute prohibits video rental and streaming services from disclosing personal information about customers without their consent, and it prevents law enforcement from accessing such data without a warrant.
According to law enforcement in Larimer County, Colorado, who took the lead on the case, the suspects are a husband and wife. The wife was involved in a custody dispute with her ex-husband over their two daughters. She and her husband allegedly took the two girls out of the county in December 2014, and their location remained unknown for eight months. The sheriff’s office obtained a warrant to track the IP address used by the wife’s accounts on Spotify and Netflix, online music and video streaming services, respectively. Investigators determined that they were located in Cabo San Lucas, in the Mexican state of Baja California Sur. The U.S. State Department reportedly arranged for Mexican officials to take them into custody and return them to the United States.
The case likely does not present Fourth Amendment problems, since the sheriff’s office obtained a warrant to track the IP address. The VPPA applies to this case, since officials accessed the wife’s Netflix account data. The statute prohibits the disclosure of a customer’s “personally identifiable information” (PII), defined to include information indicating “specific video materials or services” requested by the customer. 18 U.S.C. § 2710(a)(3). Streaming video did not exist when Congress enacted the VPPA in 1988, but courts have held that it applies to online video-streaming service providers. See Garvey et al. v. Kissmetrics et al., a/k/a In re Hulu Privacy Litigation, order (N.D. Cal., Aug. 10, 2012).
Law enforcement officials may not obtain PII without a warrant issued under federal or state law, a grand jury subpoena, or a court order. 18 U.S.C. § 2710(b)(2)(C). PII obtained in violation of the VPPA is inadmissible in any civil or criminal trial. Id. at § 2710(d). See also Washington v. Walker, No. 28647-5-II, slip op. (Wash. App., Div. II, Jan. 13, 2004).
Most reported cases dealing with the VPPA involve civil claims for invasion of privacy. A class action against the social media site Facebook included a claim that various companies violated the VPPA by providing customer information to the social media service Facebook. Lane v. Facebook, 696 F.3d 811 (9th Cir. 2012). Another class action resulted in an order invalidating a website’s entire user agreement. Harris v. Blockbuster, 622 F.Supp.2d 396 (N.D. Tex. 2009).
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.
For more than 20 years, board-certified criminal defense attorney Michael J. Brown has defended people’s rights in west Texas criminal cases at the federal and state levels. Contact us online or at (432) 687-5157 today to schedule a confidential consultation to see how we can assist you.
More Blog Posts:
Warrantless Use of Cell Phone Location Data by Police Remains Controversial, Texas Criminal Lawyer Blog, September 9, 2015
Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation, Texas Criminal Lawyer Blog, May 15, 2015
Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014