James Holmes, the Aurora, Colorado movie theater shooter, recently lost in an effort prevent the prosecution from using Holmes’s dating site information in the case. The prosecution wanted to use some information from Adultfriendfinder and Match.com in the case. Holmes made an argument that the Fourth Amendment should prevent the state from acquiring dating site information.
The court looked at two different categories of information: Holmes’s profile information and his subscription information. The profile information comprises what Holmes put on his profile, while the subscription information data supplied to the website (such as addresses, billing information, and his IP address). The subscription information also included log times (when he logged onto the site and for how long), along with other administrative information.
The court rejected any Fourth Amendment protection for the first category. An individual’s profile information is, by its nature, public. There isn’t a reasonable expectation of privacy (the standard for reasonableness in this case) if you make the matter an issue of public record. The court also further elaborates that various media outlets (like TMZ) published Holmes’s profiles on their websites. These two factors in tandem makes any expectation of privacy unreasonable.
The other category of information require more interesting analysis. The court mostly focuses on the third party doctrine in regards to the subscription information, which states that there’s no reasonable expectation of privacy in information provided to someone else. Since there isn’t a great deal of precedent dealing with online dating, the court analogizes this case to one involving Twitter (In re § 2703(d) Order) from the Eastern District of Virginia. In that case, the court found that since Twitter requests to log IP addresses as part of the Terms and Conditions, there can’t be a reasonable expectation of privacy. The court goes on to say that, since information such as IP addresses and log times get willingly conveyed to administrators of the two sites, Holmes can’t have a reasonable expectation of privacy in that information. Now there is one major caveat when it comes to this line of reasoning. The burden of proof for reasonableness falls on the defendant, and Holmes failed to present any evidence or testimony to support his assertion that he had a reasonable expectation of privacy in this information. That potentially skews the judges analysis, since he has to rely on a limited (and potentially unhelpful) body of case law with no counter-argument.
This line of reasoning is unsatisfactory. The opinion fails to account for at least one high profile case that criticized the application of the third party doctrine in the digital world. Sotomayor’s concurrence in US. v. Jones explicitly states near the end that the third party doctrine doesn’t have much meaning in a world where users have to share information with third parties to carry out mundane tasks (it is very hard to email people without sharing some identifying information, for example). There is also quite a bit of criticism from others in viewing the third party doctrine as being unfit for a predominantly digital world. It is disappointing that the judge did not even address these issues, even in passing. I suspect that the lack of evidence on Holmes’s part limited the scope of the judge’s opinion, but having at least having the judge address some argument that certain kinds of information should fall outside of the third party doctrine would be an improvement. The lack of a discussion on why items such as log times don’t have a reasonable expectation of privacy was particularly disappointing.
There is an obvious moral to this story, which is to remember than anything voluntarily posted online can come back in court. The second, less obvious moral, is that judges should consider how the particularized technology affects their analysis. Administrative logs from a website are not the same as call logs from a telephone, and judges should account for those differences in their rulings.