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No reasonable expectation of privacy in Internet subscriber information

Court dismisses civil suit against city and police officers for obtaining information about AOL subscriber without warrant.

Plaintiff Freedman used his AOL e-mail account to anonymously send a message to two other residents of his Connecticut town. The message contained the statement “The end is near,” and the recipients interpreted this as a threat to their safety. They immediately filed a police report.

A Detective Young and an Officer Bensey drafted an affidavit and application for a search warrant to seek information that would help them identify who sent the complained-of e-mail. Without submitting the paperwork to the state’s attorney’s office or a judge, Young faxed it to AOL’s legal department. A week later, AOL provided Freedman’s name, address, phone numbers, and various pieces of information relating to his account with AOL, including his screen names. No charges were ever filed.

Angry that his subscriber information had been released, Freedman filed suit against AOL, the City of Bridgeport, Detective Young, and Officer Bensey. (The case against AOL was transferred to federal court in Virginia.) Freedman argued, among other things, that the release of his account information was an intrusion into his privacy that violated his Fourth Amendment rights.

The defendants moved for summary judgment, arguing that Freedman’s Fourth Amendment rights could not have been violated, because he did not have a reasonable expectation of privacy in his subscriber information. The court agreed, and granted the motion for summary judgment on this issue.

Freedman was unable to show that any expectation of privacy he had regarding his subscriber information was objectively reasonable. The court pointed to three different reasons why one would not reasonably expect his or her subscriber information to be private for Fourth Amendment purposes.

First, by signing up for service, a subscriber knowingly discloses information to the ISP, which is accessed and used by the ISP to provide services. Second, AOL’s terms of service provided that AOL would release subscriber information “in special cases such as a physical threat to [its customer] or others.” Such a provision was especially relevant given the underlying facts of this case. Third, the Electronic Communications Privacy Act, 18 U.S.C. §2510 et seq. provides that subscriber information can be divulged in situations where the risk of physical injury justifies its release.

Given these factors, one should not reasonably believe that his or her subscriber information would be private for Fourth Amendment purposes. With no reasonable expectation of privacy, Freedman’s Fourth Amendment claim was without merit.

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Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).