The U.S. government’s zealous prosecution has made Ulbricht something of a martyr in the Bitcoin community, and it did seem that the government was motivated by an anti-Bitcoin, anti-freedom animus. But the brief focuses on an issue that affects the legal rights of everyone who uses the Internet: whether the government can acquire data about our web surfing without a warrant.
Close followers will recall that in Carpenter and Microsoft, dealing with mobile phone location data and email respectively, we argued that the data belongs in relevant part to telecom customers. Such data is a “paper” or “effect” for constitutional purposes, so seizing and searching it is regulated by the Fourth Amendment. That means in almost all cases that government agents who want to access the data must get a warrant.
The brief in this case deals with IP addresses in the same context, but rather than pointing out the right way to administer the Fourth Amendment, it undercuts a commonly used, but incorrect, way of administering the Fourth Amendment.
The brief attacks a Fourth Amendment sub-doctrine called the “third-party doctrine.” Under that rule, if a person has voluntarily conveyed information to another, they’ve assumed the risk it will be shared with the government, so they no longer have a Fourth Amendment claim in it. It’s derivative of the “reasonable expectation of privacy” test, which also has no roots in the actual text of the Fourth Amendment.
The idea that one “voluntarily” conveys IP addresses to another when one uses the Internet is literally true and also the foundation of a highly stylized legal fiction. One must share the IP addresses of sites one visits with one’s Internet service provider, and it is impossible to use the Internet without doing so. But the law treats that as identical to whispering about one’s criminal conspiracies to a confederate who might squawk under questioning.
The better view is that people share IP addresses, of necessity and for lawful purposes, under contracts that limit the further sharing of that information. People retain their right to control that information and their Fourth Amendment interests in it. They even retain their expectation that it will not be shared. But such is the state of Fourth Amendment doctrine, that your ISP might be a conduit to government officials collecting data about your web surfing without a warrant.
The brief is especially strong on debunking the “content/non-content” distinction, which is used to bolster the idea that communications themselves may have Fourth Amendment protection, but data about communications does not. There isn’t a reliable distinction between content and non-content when it comes to IP addresses, because IP addresses are often tightly enough associated with web servers that they indicate rather directly the type of content that people are perusing. An IP address can reveal that you’ve sought information about religion, health, sexuality, and much more, including the Supreme Court and the cases before it.
I’ve predicted that the Carpenter case will go well for Fourth Amendment protection of our personal data. The open question, I think, is how the court will arrive at the right result. With Carpenter already briefed and argued, the court may hold Ross Ulbricht’s case until Carpenter is decided. It may then send Ulbricht back to a lower court for reconsideration consistent with the new rule. If the Fourth Amendment protects data about our phone use, it almost certainly protects our Internet surfing. Whether that’s enough to #FreeRoss we’ll just have to see.