UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 14-cr-148-JL Opinion No.

David Morel

ORDER

Defendant David Morel moves the court to reconsider its

order denying his first motion to suppress evidence.1 See LR

7.2(d); see also LCrR 1.1(d). Specifically, Morel asks the

court to reconsider its conclusion that he lacked a reasonable

expectation of privacy in his IP address, see Morel,

, arguing that the court misapplied the law because the

Electronic Communications Privacy Act (ECPA) creates an

expectation of privacy in the records, including the IP address,

of a subscriber to an electronic service provider (ESP) such as

Imgur.2

1 As the court explained in its order on that motion, it construed Morel’s series of motions and supplemental motions (doc. nos. 24, 31, 33, 35, and 40) as a single motion. United States v. Morel,

, 2 n.1. 2 Mot. to Reconsider (doc. no. 80) at 1-2. The court does not revisit the full facts of the case,

which it outlined in the original order on Morel’s motion. See

Morel,

. Those relevant to Morel’s motion for

reconsideration are straightforward. In November 2013, an

unidentified individual reported instances of child pornography

to the National Center for Missing and Exploited Children

(NCMEC). This report included a URL leading to a gallery of

images hosted by Imgur. NCMEC forwarded the URLs of the images,

as obtained by one of its analysts, to Imgur via an automated

process. The bottom of the notice included the following

message: “Please review the reported URL to determine if it

contains content that violates federal and/or state law or your

Terms of Service or Member Services Agreement.”3

After receiving this notice, Imgur filed three reports

through NCMEC’s CyberTipline indicating that some of the URLs

forwarded to it by NCMEC contained apparent child pornography.

Imgur attached copies of the images to its reports and provided

the IP address of the computer from which those images were

uploaded. Ten days later, Imgur submitted three additional

reports of apparent child pornography associated with the same

IP address to NCMEC. NCMEC made the reports available to the

3 Hearing Ex. 3.

2 New Hampshire Internet Crimes Against Children task force, which

forwarded them to the Derry, New Hampshire, police department.

A detective discovered child pornography on Morel’s computer,

which he searched pursuant to a warrant. Morel subsequently

admitted to possessing those images.

Morel moved to suppress the images found on his computer

and statements made during his custodial interrogation. He

argued, inter alia, that Imgur’s provision of his IP address to

NCMEC amounted to a warrantless governmental search in violation

of his rights under the Fourth Amendment. In denying Morel’s

motion, the court found, as many other courts have, that

“subscriber information provided to an internet provider,”

including a subscriber’s name, address, and IP address, “is not

protected by the Fourth Amendment’s privacy expectation.”

Morel,

, 20-21 (quoting United States v. Perrine,

(10th Cir. 2008) (collecting cases)).

Morel does not dispute this point -- indeed, he concedes

that “there is abundant case law holding that there is no

expectation of privacy in an IP address.”4 As he acknowledged in

his supplemental memorandum on the subject, “Federal courts that

have addressed this issue have thus far found that there is no

4 Mot. to Reconsider (doc. no. 80) at 3.

3 expectation of privacy in Internet subscriber information.”5

They find no such expectation because individuals voluntarily

and routinely convey their IP addresses to third parties (e.g.,

when they visit a website) and through third-party equipment

(e.g., that of their internet service provider). E.g., United

States v. Ulbricht, No. 15-1815,

(2d

Cir. May 31, 2017); Christie, 624 F.3d at 573-74; Bynum, 604

F.3d at 164; Perrine,

; Forrester, 512 F.3d

at 510. In that sense, an IP address is akin to a telephone

number or an address on the outside of an envelope. See

Ulbricht,

; Forrester, 512 F.3d at

510-11. Because individuals routinely share that information

with others in the process of using the internet, they cannot

reasonably expect it to remain private.

In moving for reconsideration, Morel argues that the court

should disregard the weight of authority and conclude, in light

of the ECPA, that Morel had a reasonable expectation of privacy

in his subscriber information held by Imgur -- including his IP

5 Defendant’s Mem. in Response to Court’s Order Requiring Further Briefing (doc. no. 40) at 5-6 (citing United States v. Christie,

(3d. Cir. 2010); Perrine,

; United States v. Bynum,

(4th Cir. 2010); United States v. Forrester,

(9th Cir. 2008)).

4 address.6 This amounts to a new gloss on the argument Morel

raised in his supplemental memorandum, albeit one that the court

did not address directly in its order,7 and which Morel now

contends the court “misapprehended.”8

As Morel points out, the ECPA protects subscriber

information by prohibiting “a provider of remote computing

service or electronic communication service to the public” from

“knowingly divulge[ing] a record or other information pertaining

to a subscriber to or customer of such service . . . to any

governmental entity.”

(a)(3). Nor may “[a]

governmental entity . . . require a provider of electronic

communication service or remote computing service to disclose a

record or other information pertaining to a subscriber to or

customer of such service” without the consent of the subscriber,

a warrant, a court order, a subpoena, or a written request

relevant to a telemarketing fraud investigation.

§ 2703(c)(1). These prohibitions, Morel argues, lead him to

reasonably expect that Imgur would not divulge his subscriber

6 Mot. to Reconsider (doc. no. 80) at 3. 7 The court may thus have implied that Morel’s argument concerning his IP address was under-developed. See Morel,

. The court did, however, consider that memorandum in rendering its decision. See

at 2 n.1. 8 Mot. to Reconsider (doc. no. 80) at 3.

5 information, such as his IP address, to NCMEC, a governmental

entity, absent his consent, a warrant, or any the instruments

described in

(c)(1).

As the court observed, however, “Congress explicitly carved

out an exception to those privacy rules that permits ESPs to

divulge a customer’s records (such as his IP address) ‘to the

National Center for Missing and Exploited Children, in

connection with a report submitted thereto under section

2258A.’” Morel,

(quoting

(b)(6), (c)(5)). Thus, even if Congress created an

expectation of privacy in IP addresses through the ECPA, as

Morel argues, it at the same time erased that expectation with

respect to subscriber information that may be submitted to NCMEC

through the CyberTipline -- as Morel’s IP address was here.

Even absent such an exception, ECPA’s prohibition of ESPs from

providing to the government, or of the government requesting, a

subscriber’s information without a warrant or subpoena, does not

create a privacy interest in information that the individual

regularly provides to other third parties.9

9 The defendant bases his arguments purely on the ECPA’s text. He cites no extrinsic evidence of statutory purpose or legislative intent to support the purported expectation of privacy in otherwise publicly-disclosed information. The court therefore likewise confines itself to the statute’s text.

6 Morel argues that “the Court misapprehends the interaction

between the protections of the ECPA and [this] exception . . .

as they relate to the facts of this case.”10 In essence, Morel

contends that the NCMEC report exception does not undermine

Morel’s expectation of privacy in his IP address because Imgur

submitted its reports to NCMEC only after NCMEC alerted it to

potential child pornography on its servers. Because NCMEC, not

Imgur, instigated Imgur’s disclosure, he argues, NCMEC was able

to bypass the warrant requirement and obtain subscriber

information in a manner it, as a likely governmental entity, see

United States v. Keith,

(D. Mass. 2013),

would not have been able to do through a direct request.11

In making this argument, the defendant conflates the

expectation of privacy analysis with that addressing whether

NCMEC was a government actor for purposes of any “search” it may

have performed or initiated. The court must conclude that an

expectation of privacy in Morel’s IP address exists before it

need address whether NCMEC acted as a governmental agency that

instigated Imgur’s disclosure of information. As discussed

supra, the weight of authority compels the conclusion that Morel

10 Id. at 4. 11 Mot. to Reconsider at 4.

7 possessed any such expectation; and the statute does not compel

the alternative conclusion.

Even if the court viewed the ECPA as creating such a

privacy interest, the exception carved out for reports to NCMEC

would still undermine that expectation. It requires ESPs to

report known child pornography to NCMEC, and explicitly allows

ESPs to submit subscriber information along with such reports.

See

(b)(6), (c)(5). A subscriber may therefore

expect that, if he or she posts child pornography to Imgur or

another ESP, that ESP may submit their information, including an

IP address, to NCMEC. This exception does not require

independent discovery of the child pornography, as Morel

suggests; it requires only that the ESP know about the child

pornography, regardless of the source of that information.

Because it still concludes that Morel lacks any expectation

of privacy in his IP address, the court need not -- and

therefore does not -- address his reiteration of his argument

that NCMEC, as a government entity, instigated a search that

violated his rights under the Fourth Amendment by prompting

Imgur to divulge his IP address.12

12Mot. to Reconsider (doc. no. 80) 5-9; Defendant’s Mem. in Response to Court’s Order Requiring Further Briefing (doc. no. 40) at 2, 6-14.

8 The court accordingly DENIES the defendant’s motion for

reconsideration.13

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: June 26, 2017

cc: Donald A. Feith, AUSA Helen W. Fitzgibbon, AUSA Shane Kelbley, AUSA Philip H. Utter, Esq.

13 Document no. 80.

9