This is a follow up ruling in a case previously covered on this blog regarding a search of an Instagram account. This case originally caught my interest because it appears to be the first post-Carpenter case that dealt with an Instagram account. The judge made findings regarding standing and also wanted more information from the Government. The original blog post can be found here:
Regarding the standing issue, the Court previously demanded evidence to reveal whether the accounts were created or controlled by her as well as the privacy settings she maintained for the accounts.
Citing the Fifth Circuit opinion in Contreras (see October 11 post) and the E.D. Wisconsin opinion in Tirado (see September 16 post), the Court concluded that an IP address had no bearing on one’s personal movements and decided that Carpenter did not affect the third-party doctrine with respect to an IP address. The Court concluded that photograph metadata is not like GPS data that tracks movements. Therefore, there was not the same expectation of privacy in these Instagram account records that there would be in cell-site location data (because the latter tracks movements and the former does not).
The Court found that the defendant did not sustain her burden to demonstrate standing.
The Court, mindful of the possibility of appellate review, went further regarding the search warrant and made some findings of fact and conclusions of law.
The Court concluded that the Government met their burden to show the timeliness of the execution of the warrant’s service on Facebook; that the uploading of a warrant was legal; and that the detective had sufficient familiarity with the subject matter for which the warrant was being requested.
The case is People v Sime, 2018 N.Y. Misc. LEXIS 5333, 2018 WL 6056099, 2018 NY Slip Op 28360 Crim. Ct. NYC, November 20, 2018.