U.S. appeals court OKs use of third-party app data to track down suspected child molester

By: - November 25, 2020 12:49 pm

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home to the U.S. Court of Appeals for the Eleventh Circuit. Credit: Wikimedia Commons

Homeland Security agents did not violate an accused child molester’s Fourth Amendment rights by using information he provided to messaging-app companies to learn his identity and where he lived, a federal appeal court ruled Wednesday.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled unanimously that a U.S. Supreme Court precedent heavily restricting use of cellphone tower-locating information to learn whether a suspect had been near a crime scene did not apply in this case.

That’s because the agents used the information from third-party apps only to learn the suspect’s email addresses and internet protocol addresses. Those, in turn, led the agents to the suspect’s parents’ home, where he was living.

“Neither kind of information is more than incidentally associated with cellphones. Many kinds of devices access wireless internet networks: computers, tablets, gaming consoles, household appliances, and more. And each of those devices has an internet protocol address,” Chief Judge William Pryor wrote.

“We cannot conclude that internet protocol addresses are cellphone records when they are a feature of every electronic device that connects to the internet. Some individuals may use cell phones to send and receive emails, but it strains credulity to say that use transforms email addresses into cellphone records.”

The court, which presides over appeals originating in Florida, Alabama, and Georgia, upheld the conviction and life sentence given to Port St. Lucie man, whose identity the Phoenix isn’t reporting because his victims allegedly included family members who are minors.

Also on the panel were judges Frank Hull and Stanley Marcus.

The court record shows that the man had been charged in 2012 with promoting a sexual performance by a child, possessing child pornography, and lewd behavior but was allowed to plead guilty to felony child neglect.

He was charged again in 2016 after his daughter reported that he was molesting her but the court let him retain custody and he continued the abuse and collected child pornography while awaiting prosecution, the records say.

The charges at issue in Wednesday’s ruling arose in 2017 after the parents of a 9-year-old North Carolina girl discovered that she was being groomed by someone via the SayHi messaging app. Agents who examined her phone found his picture and that that person also had an account on a similar app, Kik.

That’s a domestic company that provided the man’s email address and recently used internet protocol addresses.

Comcast subscriber records led the agents to the man’s parents’ house, where his driver’s license data indicated he lived. A judge issued a warrant, and a search revealed “years’ worth of videos of [him] sexually abusing his daughters, along with thousands of images and videos of child pornography [he] had downloaded from the internet, plus archived messages in which [he] shared child pornography with others and solicited nude images and videos from young girls,” Pryor wrote.

The man argued the search was improper under Carpenter v. United States, in which the Supreme Court suppressed evidence involving cell tower location data that placed a suspect in the vicinity of robberies in Detroit. Cell companies typically retain the data and are becoming increasingly sophisticated at using them to pinpoint the location of users.

The Fourth Amendment protects people against unreasonable searches and seizures, but there’s no expectation of privacy involving information voluntarily turned over to third parties. However, the justices ruled that customers do not voluntarily turn over their location information to their cellphone providers.

As the 11th Circuit panel noted, the high court concluded that “carrying a cell phone is ‘indispensable to participation in modern society,’ cellphones generate cell-site location information ‘without any affirmative act on the part of the user,’ and users have no way to stop data collection other than making the phone useless by disconnecting it from the network.”

But that wasn’t an issue in this case, Pryor wrote. The precedent “applies only to some cell site-location information, not to ordinary business records like email addresses and internet protocol addresses,” he added.

“[The man] affirmatively and voluntarily acted to download Kik onto his phone and to create an account on the app. He conveyed his internet protocol address and email address to a third party when he logged into Kik. And he did so voluntarily, affirmatively acting to open the app and log in, and without taking available steps to avoid disclosing his internet protocol address.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.