The Fourth Amendment guards against unreasonable searches and seizures by requiring (with limited exceptions) that government agents first obtain a warrant before they go snooping around or confiscating someone’s property. But what exactly does this mean in the modern world of smart phones, wi‐fi, and extended Socratic dialogues with Siri? If the New York‐based U.S. Court of Appeals for the Second Circuit is to be believed, it means that the government can monitor and collect your internet traffic if this information is merely “likely” to be “relevant” to an ongoing criminal investigation.
That is exactly what happened to Ross Ulbricht, the creator of a website known as “Silk Road,” which enabled users to anonymously buy and sell goods and services. In the course of an investigation into illegal activities associated with the website, the government obtained five “pen/trap” orders authorizing law enforcement to collect IP (internet protocol) addresses for any internet traffic going to or from Ulbricht’s wireless router and other electronic devices. These orders were obtained in lieu of a warrant under a statutory “relevance” standard that falls well short of the Fourth Amendment’s requirement for probable cause.
How could this standard possibly not be constitutionally insufficient? The Second Circuit relied on the “third party doctrine,” ruling that there was no Fourth Amendment issue because users voluntarily conveyed their information to ISPs (internet service providers) and third‐party servers, and thus assumed the risk that it would later be turned over without their permission or knowledge. This doctrine, which was developed in the days of pay phones and file cabinets, cannot be fairly extended to online activity given that internet access is—for all intents and purposes—a necessity of modern life for any functioning member of society. Recognizing this simple fact undermines any claim that users have somehow assumed the risk of disclosure to the government, which would have assumed that these users had any real choice in the matter to begin with.
The court also reasoned that because pen/trap devices only reveal IP addresses associated with the user’s online browsing, the collected information doesn’t count as “content” worthy of protection—despite the direct correlation between individual IP addresses and websites, along with the ample information that can be gleaned from knowledge of an individual’s browsing history. The court seemed to conclude that there was no content revealed because an IP address only uncovers the website visited rather than any individual webpage within that site. This superficial approach utterly ignores digital reality.
Finally, the court failed to recognize that the statute authorizing pen/trap data seizure imposes virtually no limits on government attorneys’ discretion. These orders are exceedingly broad in scope and available to nearly any government agency conducting a criminal investigation. Worse still, the court’s role in approving the orders is merely ministerial, with the statute mandating that “the court shall enter an ex parte order authorizing the installation” of these devices.
Because the Second Circuit has stretched both the third‐party doctrine and the content/non‐content distinction far beyond their logical limitations, Cato—along with the Reason Foundation, Competitive Enterprise Institute, and R Street Institute—has filed an amicus brief asking the Supreme Court to take this case and firmly establish that the internet doesn’t constitute some sort of Constitution‐free zone.