A computer hacker unlawfully enters a computer network of one of the San Diego school districts. The hacker then gains control of the district’s routers, and transmits the data located on the district’s network to the hacker’s computer. As a result, the hacker obtains access to payroll and employee records, birthdates, social security numbers, and other confidential data. The only way to trace the hacker is by his or her Internet Protocol number or IP. If the school district’s computer expert or a law enforcement digital forensic specialist is able to identify the hacker’s IP, can the hacker challenge the validity of a search warrant requiring an Internet provider, like AT&T, Verizon, or Time Warner, to identify the hacker through his or her IP address?
The answer to this question can be found in the application of the Fourth Amendment principles that guarantee the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures by police officers and other government officials. When a police officer applies for a search warrant to require an Internet provider to identify the subscriber who has a specific IP address, the Fourth Amendment requires the showing of probable cause to support such disclosure. It also requires a subscriber, who wants to challenge the validity of such a warrant, to establish that he or she has a “reasonable expectation of privacy” in the specific IP address obtained by law enforcement officers.
However, as a California Court of Appeals recently reiterated, a subscriber has no expectation of privacy in the subscriber information he or she supplies to an Internet provider, As a result, a subscriber lacks standing to challenge a warrant requiring a provider to identify a subscriber through his or her IP address. The Court analogized e-mail and Internet users to telephone users who traditionally have lacked any reasonable expectation of privacy in the numbers they dial.
Despite this court decision, an experienced criminal defense lawyer may still attack the validity of a warrant by showing that the officer’s affidavit was insufficient to establish probable cause for a search, or that a warrant was improperly executed. Depending on the circumstances of each case, a criminal defense attorney may be able to persuade a trial court to dismiss criminal charges if the evidence was obtained in violation of the Fourth Amendment.
This office handles all matters related to unconstitutional searches and seizures and suppression of evidence in San Diego County. We have successfully litigated search and seizure issues in dozens of cases. For a free consultation, contact us at (619) 232-5122 or: info@attorneylombardo.com
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