State v. Delp - Privacy Interest in ISP subscriber information Cases of Interest >  Criminal

State v. Delp

State v. Delp
2008 WL 375946 (Or. App.)

Facts: An FBI agent, posing as a 14 year-old girl, engaged in an online chat with someone with the screen name “JohnDD33.” During the conversation, “JohnDD33” asked the 14 year-old girl (i.e. the FBI agent) whether she had ever been with an older man. He told her that he had previously had sexual relations with a 12 year-old girl in Indiana, was planning on having sexual relations with a 9 year-old girl in Oregon (an hour from where “JohnDD33” lived), and asked her if she wanted him to come visit her in Ohio to have sexual sexual relations as well. “JohnDD33” also sent the girl/FBI agent nude pictures of himself and gave her his email address with AOL, his internet service provider. From this, the FBI issued a subpoena to AOL requesting the name, address, telephone number, subscriber number, and telephone records of “JohnDD33.” AOL complied and disclosed that the email address was issued to the Defendant, John Delp. Based on this disclosure, the FBI obtained a warrant to search Delp’s home and during the subsequent search found child pornography on his computer. During questioning, Delp confessed to engaging in many other acts of lewd sexual activities with children.

Procedure: Delp was charged with two counts of first-degree sodomy, one count of first-degree sexual abuse, and three counts of first-degree encouraging child sexual abuse for possessing child pornography. Before trial, Delp’s attorney made a motion to suppress all of the evidence that the FBI obtained from AOL. Delp’s attorney argued that the FBI’s issuance of the subpoena amounted to an unlawful warrantless search and seizure under Art. 1, Section 9 of the Oregon Constitution. The State argued that Delp had no protected privacy interest in the information with AOL and, thus, the FBI required no warrant before issuing the subpoena. The trial court agreed with the State and denied Delp’s motion. Delp appealed arguing that he had a protected privacy interest in his AOL subscriber information. The State’s argument relied heavily on a previous privacy interest case in which the the Oregon Supreme Court held that a defendant has no privacy interest in his or her cell phone records. A fortiori, the State argued that Delp had no privacy interest in his AOL information because internet subscriber information is analogous to the customer records maintained by cell phone companies.

Issue: Did the FBI’s subpoena violate Delp’s constitutional rights under Art. 1, Section 9 of the Oregon Constitution? And, more specifically, did Delp have a protected privacy interest in his subscriber information with AOL?

1. Under Art 1, Section 9 of the Oregon Constitution, a person has the right to be free from unreasonable searches of those places and things for which the person has a “privacy interest” in, even when there is no physical or sensory invasion into the person’s own possessions or space.
2. Whether a person has a privacy interest in a particular place or thing is a matter of law to be determined by the judge.

Holding: Delp had no protectable privacy interest in the subscriber information in the possession of AOL. The Court recognized that Delp did have a privacy interest in the actual conversations he had and emails he sent online; however, this privacy interest, as in the context of a customer’s cell phone records held by his or her cell phone service provider, did not extend to the information that was created and maintained by AOL for its own purposes. Thus, the Court reasoned, the FBI did not violate Delp’s constitutional rights when it subpoenaed Delp’s subscription information from AOL without first obtaining a judicial warrant. Further, to support this finding the Court looked to federal law and recognized that, in the context of the Fourth Amendment, federal courts have uniformly concluded that internet users have no reasonable expectation of privacy in their subscriber information held by their internet service providers.

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