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4th Amendment Violation – Warrantless Search & Seizure

7th Circuit Court of Appeals

Case Name: United States of America v. Edward Soybel

Case No.: 19-1936

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: 4th Amendment Violation – Warrantless Search & Seizure

Industrial-supply company W.W. Grainger was the victim of a series of cyberattacks against its computer systems in 2016. Grainger isolated the source of the intrusions to a single internet protocol (“IP”) address, which came from a high-rise apartment building where disgruntled former employee Edward Soybel lived.

Grainger reported the attacks to the FBI. To confirm the source, the government sought and received a court order under the Pen Register Act, 18 U.S.C. §§ 3121 et seq., authorizing the installation of pen registers and “trap and trace” devices to monitor internet traffic in and out of the building generally and Soybel’s unit specifically. Among the data collected, the pen registers recorded the IP addresses of the websites visited by internet users within Soybel’s apartment. The IP pen registers were instrumental in confirming that Soybel unlawfully accessed Grainger’s system. The district court denied Soybel’s motion to suppress the pen-register evidence and its fruits, and a jury convicted him of 12 counts of violating the Computer Fraud and Abuse Act.

This appeal presents a constitutional issue of first impression for our circuit: whether the use of a pen register to identify IP addresses visited by a criminal suspect is a Fourth Amendment “search” that requires a warrant. We hold that it is not. IP pen registers are analogous in all material respects to the telephone pen registers that the Supreme Court upheld against a Fourth Amendment chal lenge in Smith v. Maryland, 442 U.S. 735 (1979). The connection between Soybel’s IP address and external IP addresses was routed through a third party—here, an internet-service provider. Soybel has no expectation of privacy in the captured routing information, any more than the numbers he might dial from a landline telephone.

Soybel insists that this case is governed not by Smith but by Carpenter v. United States, 138 S. Ct. 2206 (2018). We disagree. Carpenter concerned historical cell-site location information (“CSLI”). The warrantless acquisition of that type of data implicates unique privacy interests that are absent here. Historical CSLI provides a detailed record of a person’s past movements, which is made possible so long as he carries a cell phone. In contrast, the IP pen register had no ability to track Soybel’s past movements. And Carpenter is also distinguishable based on the extent to which a person voluntarily conveys IP-address information to third parties. Accordingly, though our reasoning differs from the district judge’s, we hold that the suppression motion was properly denied.

Soybel also challenges the sufficiency of the evidence on one of the 12 counts. We reject this argument and affirm the judgment in all respects.

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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