IP Addresses and an Expectation of Privacy — NIT and Government Malware

My criminal practice recently focused on a significant case involving IP addresses and privacy rights. The case involves government use of online surreptitious surveillance methods, an NIT, in a criminal investigation to determine a potential defendant’s Internet Protocol (“IP”) address, and thus home address, to subsequently serve criminal subpoenas and search warrants on that home address. The government maintains in these types of investigations potential criminal defendants have no expectation of privacy in their IP address. However, various criminal statutes, regulatory provisions, and sentencing guidelines reflect Congress’ intent to provide a national reasonable expectation of privacy rights in “IP” addresses and thus location data. This blog shall identify several federal statutes that establish Congressional privacy rights in IP or location address data.

In one criminal statute, Congress makes it illegal under 18 U.S.C. § 1030(5) to “knowingly cause[s] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.” Subsection 1030(f) “does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.” Congress’ requirement of a warrant in subsection (f), “prior authorization” through a judicially approved legal procedure and probable cause, indicates the privacy and constitutional rights that are applicable to these searches, when the take place in searching a defendant’s home pre-arrest.

In these cases, the Government maintains defendants do not have a reasonable expectation of privacy in their IP location data. They are wrong. The government thinks it is OK to hack private individual’s computers through a code or command sent to that computer. Courts have held these types of investigations are searches, requiring an authorized warrant, and thus judicial oversight. Required judicial oversight is Congressional recognition of privacy rights in location data.

This position is supported by a recent national criminal case. In 2013 various Chinese state co-conspirators were indicted for violating 18 U.S.C. §§ 1028 and 1030, et seq. At paragraphs 15, 18, and 43 of the indictment, the Government alleges these officials engaged in acts constituting violations of 18 U.S.C. § 1028(a)(1), 18 U.S.C. §§ 1028A(b), 1028A(c)(4), and 2. The blatant and outrageous criminal conduct at paragraphs 52-53 includes illegally taking personal identification information of another, without authorization. The Government equates stealing personal IP address and location data with violations of the United States Code.

The United States Sentencing Guidelines include a specific guideline provision devoted to theft of personal privacy data. For sentencing purposes, confidential information under 18 U.S.C. § 1039(h)(1)(A) includes personal location data. U.S.S.G. §2H3.1 addresses the manner in which federal courts are to assess offense levels and sentencing enhancements for violations of 18 U.S.C. § 1039.

In the context of active location data provided through cellular telephone surveillance capabilities, there has been extensive litigation over the definition of Other Information that is generated when utilizing a cellular telephone. Congress defines Other Information as historical and real time “cell site location information” (“CSLI”), which discloses location data of persons utilizing cellular telephones. In In re Application, 620 F.3d 304 (3d Cir. 2010), the Third Circuit addresses probable cause requirements in warrants seeking this information based upon the privacy issues attached thereto. See (http://www.phila-criminal-lawyer.com/Publications/005061214-Hark.pdf).

In 1997 Congress passed amendments to the Communications Act of 1934. Congress, and the FCC, through enabling regulations, passed numerous rules identifying and then delineating the exact nature of customers’ privacy rights to their personal information and telecommunication companies’ duty of protecting such from commercial exploitation. 47 U.S.C. § 222 was added to the Communications Act by the Telecommunications Act of 1996. Section 222 of the Act establishes a duty of every telecommunications carrier to protect the confidentiality of customer proprietary network information (” CPNI”). CPNI is “information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” 47 U.S.C. § 501 makes it a crime to knowingly and intentionally violate (disclose this information) the Act.

The Privacy Act of 1974 addresses privacy of federal employees’ personal information. “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions].” 5 U.S.C. § 552 a(b). 32 CFR 505.7 – relating to Freedom of Information Act disclosures of Federal Employees personal information states at subsection (e) (1) states “The release of home addresses and home telephone numbers normally is prohibited.”

Release of personal location information is normally considered a clearly “unwarranted invasion” of personal privacy and is exempt from mandatory release under the FOIA. 32 CFR § 505.7(d)(1)(vi) identifies home addresses as personal information not to be release without prior consent of the individual. There is an entire Department of Justice Overview of this Act on its website. The DOJ has its own Chief Privacy and Civil Liberties Officer enforcing provisions of the Privacy Act on Federal employees and agencies. https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition.

Congress has established privacy obligations on the private sector through legislation affecting the financial services, health care, government, and Internet sectors. Federal regulations issued to carry out federal privacy laws impose obligations on covered entities to implement information security programs to protect unauthorized dissemination of private individual’s personal information. Protected personal information (“PPI”) in each service field typically includes name, address (location) date of birth, and social security numbers of the persons affected. A short list of CFR sections addressing PPI includes 32 CFR 701.115, 32 CFR 505.7, and 36 CFR 902.56.

In light of numerous federal statutes criminalizing any disclosure of personal privacy information (address location data) of both private and government employees, every defendant or target has a reasonable expectation of privacy in their location data, to which a legal and proper warrant is required for the Government to discover such information.

Please call me to discuss your case.

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