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June 14, 2011

New Hampshire Court: Comcast Can Release IP Address

The New Hampshire Supreme Court recently held that internet users have no reasonable expectation of privacy in subscriber information held by internet service providers (ISPs). The case is State v. Mello.

Comcast This case was closely watched because, as this article explains, the N.H. Supreme Court has often been willing to interpret its state constitution to provide greater protections of individual rights than the federal constitution. The defendant in this case was charged distribution of child pornography.  He was caught in an undercover police operation when a detective posed online as a 14-year-old boy. The defendant exchanged e-mails and chatted with the detective, and sent to the detective pornographic images depicting male children. 

The detective, using the defendant's e-mail address, determined the defendant's IP address was assigned to Comcast, a New Jersey company. The detective then obtained a search warrant for the defendant’s subscriber information. Using this information, the detective obtained an additional search warrant for the defendant's home computer, and seized evidence that led to his indictment. 

The defendant argued that the warrant was issued in violation of his rights under the Fourth Amendment to the Federal Constitution and Part I, Article 19 of the New Hampshire Constitution. The defendant correctly noted that a New Hampshire court could not issue a warrant to a corporation outside of the state. But he still lost because no warrant is needed to obtain subscriber information related to an IP address.

The key question is whether a person has a reasonable expectation of privacy in his or her subscriber information. If the answer is yes, then a warrant is needed. If the answer is no, then no warrant is required. The New Hampshire court answered the question with a “no”  — comparing subscriber information to other information that a person voluntarily provide to public utilities such as banks and phone companies. The court said: 

"[W]e see no meaningful distinction between obtaining telephone numbers recorded in the ordinary course of business by a telephone company and the procurement of a customer's basic subscriber information from an Internet service provider. . . the defendant voluntarily provided the information to Comcast, which recorded it in the ordinary course of business for billing purposes and used it to provide the defendant with Internet service. Having voluntarily provided this information in order to use Comcast's service, the defendant cannot now claim a privacy interest in it."

The court also noted that Comcast’s privacy policy indicates that subscriber information may be disclosed to “comply with law.” The court noted that this conclusion was consistent with the “overwhelming majority of federal and state courts that have addressed this issue and conclude that a defendant has no reasonable expectation of privacy in subscriber information voluntarily provided to an Internet service provider.” 

The New Hampshire court declined to provide greater protection under the state constitution than provided by the federal Constitution in this case. The key fact for the court was that the defendant voluntarily provided subscriber information “to Comcast, and in doing so, lost any reasonable expectation of privacy in that information.”  In reaching this conclusion, the court acknowledged that “many users conduct some of their most private affairs over the Internet because of the anonymity that it offers.”  However, this desire for anonymity was not enough to trump what the court viewed as a voluntary disclosure of information to an ISP. 

Image: Comcast website.


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