OPINION SUR PA.R.AP.P. 1925(a)

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1 Commonwealth v. Sellard No Ashworth, J. January 16, 2015 Criminal Sexual Abuse of Children Pa. R.A.P. 1925(a) Opinion Suppression IP Subscriber Name and Address Pennsylvania Stored Communications Act, 18 Pa. C.S.A. 5741, et seq. Although neither the Pennsylvania Supreme Court nor the Superior Court has addressed the question of what constitutes content in the context of whether notice is required by the government when the government obtains a court order for a defendant s IP subscriber name and address, federal and state jurisdictions around the country have consistently and unequivocally determined that IP addresses, physical locations, browser type, subscriber information, information such as tweets, logs of account usage, mailer header information (minus the subject line), and lists of outgoing addresses sent from an account are non-content information. A criminal defendant s IP subscriber name and address are not content as defined in 5743 of the Pennsylvania Stored Communications Act, 18 Pa. C.S.A. 5741, et seq., and the Commonwealth is not obligated to give notice to the defendant that his IP subscriber information was obtained by the government. IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : v. : No : JAMES SELLARD : OPINION SUR PA.R.AP.P. 1925(a) BY: ASHWORTH, J., JANUARY 16, 2015 Appellant James Sellard has filed an appeal to the Superior Court of Pennsylvania from this Court s judgment of sentence entered

2 on October 27, This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, and for the following reasons, this Court requests that this appeal be denied. I. Background On April 4, 2013, Detective Bradley Ortenzi of the Ephrata Borough Police Department and a member of the Lancaster County Computer Crimes Task Force was performing a search of peer-to-peer (P2P) networks 1 for individuals sharing child pornography. He located a computer willing to share files on the ARES network that contained suspected child pornography. (Internet Protocol) address of and an ARES nickname of pops1228@ares associated with it. This computer had an IP Detective Ortenzi learned that this IP address was owned by Comcast Cable Communications. (See Trial Exhibit 9 at Stipulation 2.) Detective Ortenzi presented the partially downloaded file and the IP address to another detective assigned to the Lancaster County Computer Crimes Task Force, Detective Keith Neff. Detective Neff requested a court order containing a description of the partially downloaded file and requested (1) that Comcast Cable Communications disclose the subscriber information for the IP Address and (2) that Comcast not disclose this request to the subscriber. (See Trial Exhibit 9 at Stipulation 3.) The court order was granted on April 11, 2013, and Comcast disclosed to the Commonwealth that the IP address in question belonged to Appellant at an address of 76 Roosevelt Boulevard, Unit 101, Manheim Township, Lancaster County. (See Trial Exhibit 9 at Stipulation 3.) Using the information from Comcast, Detective Keith R. Kreider of the Manheim Township Police Department, and a member of the Computer Crimes Task Force obtained a search warrant for Appellant s 1 P2P Network is a method of finding file sharing available to internet users through use of special software that links the computers together to allow for sharing of digital files between users on that network. The P2P system is predicated on people sharing the files that they have and willingly allowing each user to see what they are offering to share. Users of P2P have to select which files they want to download and a download of that file is achieved through direct connection between the computer requesting the file and the computer containing the file. (See Trial Exhibit 9, Stipulation 1.)

3 apartment on June 20, When the warrant was executed on June 20, 2013, the Commonwealth seized a Dell computer system, two external hard drives, and three damaged laptops. (See Trial Exhibit 9 at Stipulation 4.) A forensic examination was conducted by Detective John Duby, a Lancaster County Computer Forensic expert, on Appellant s computer and the external hard drives seized from his apartment. The examination resulted in the identification of 14 suspected child pornography images depicting children under the age of 18 engaging in prohibited sexual acts, and 13 suspected child pornography videos depicting children under the age of 18 engaging in prohibited sexual acts. (See Trial Exhibit 9 at Stipulation 5; see also Commonwealth Trial Exhibits 4-6.) As a result of this police investigation, on September 12, 2013, Appellant was charged with two counts of sexual abuse of children, possession of child pornography (F3) (18 Pa. C.S.A. 6312(d)(1)). Appellant filed a suppression motion on April 23, 2014, and a hearing was held on July 18, Thereafter, the parties filed briefs addressing the issues of whether notice is required by the government when the government obtains a court order for a defendant s IP subscriber name and address and whether such subscriber information is content under 18 Pa. C.S.A. 5743(b), or excluded under 18 Pa. C.S.A. 5743(c)(3) as non-content records. By Order dated July 28, 2014, Appellant s motion to suppress was denied, as this Court found that the IP subscriber name and address obtained via a court order dated April 11, 2013, were not content for purposes of 18 Pa. C.S.A. 5743(b) and, therefore, notice to Appellant was not required. As such information constituted non-content records, I held that 18 Pa. C.S.A. 5743(c) controlled, and that the procedural protections provided for in 5743(c) were followed in this case. After a waiver of his right to a jury trial, Appellant proceeded to a bench trial on August 1, At the conclusion, Appellant was found guilty of two counts of sexual abuse of children, child pornography. Pursuant to 42 Pa. C.S.A , the Commonwealth gave notice of its intent to seek a sentence of life imprisonment on the charges as Appellant had three prior convictions for indecent assault. 3

4 Sentencing was deferred pending completion of a pre-sentence investigation report. Moreover, having been found guilty of two counts of sexual abuse of children, Appellant was ordered to undergo an assessment by the Pennsylvania Sexual Offender Assessment Board (SOAB). 2 See 42 Pa. C. S. A (a) ( a court shall order an individual convicted of a sexually violent offense to be assessed by the board ); (defining sexually violent offense ). A hearing was held on October 27, 2014, to determine if Appellant qualified as a sexually violent predator (SVP) under the Sex Offender Registration and Notification Act, 42 Pa. C.S.A Robert M. Stein, Ph.D., testified on behalf of the SOAB and expressed his expert opinion, within a reasonable degree of professional certainty, that Appellant met the criteria to be classified as an SVP under the Act. At the conclusion of the hearing, I found Appellant to be a sexually violent predator and immediately sentenced Appellant to two concurrent sentences of life in prison pursuant to 42 Pa. C.S.A Appellant was represented during his trial and sentencing by private counsel, Jeffrey Conrad, Esquire. A timely notice of appeal was filed on November 26, 2014, by James J. Karl, Chief Public Defender of Lancaster County. Pursuant to this Court s directive, Appellant furnished a concise statement of matters complained of on appeal which challenged only this Court s denial of his motion to suppress the information that police obtained from Comcast pursuant to a court order. (See Concise Statement at 1.) II. Discussion 2 The SOAB is composed of psychiatrists, psychologists and criminal justice experts, each of whom is an expert in the field of the behavior and treatment of sexual offenders. 42 Pa. C.S.A (a). 4

5 The sole issue on appeal is whether I erred in denying Appellant s motion to suppress the subscriber information obtained by the government from Comcast on April 19, Specifically, the police obtained information regarding Appellant s identity and his account with Comcast. The police were acting under the authority from a court order issued on April 11, The court order was based on the procedures set forth in 5743 of the Pennsylvania Stored Communications Act, 18 Pa. C.S.A. 5741, et seq. The question briefed by the parties following the suppression hearing was whether Appellant s IP subscriber name and address are content as defined in 18 Pa. C.S.A for the purposes of notification to Appellant that his IP subscriber information was obtained by the government. Section 5743 has five subsections, two of which are relevant to the issue in this case: (b) and (c). Subsection (b) deals specifically with content and states: (b) Contents of communications in a remote computing service. -- (1) Investigative or law enforcement officers may require a provider of remote computing service to disclose the contents of any communication to which this paragraph is made applicable by paragraph (2): (i) without required notice to the subscriber or customer if the investigative or law enforcement officer obtains a warrant issued under the Pennsylvania Rules of Criminal Procedure; or (ii) with prior notice from the investigative or law enforcement officer to the subscriber or customer if the investigative or law enforcement officer: (A) uses an administrative subpoena authorized by a statute or a grand jury subpoena; or (B) obtains a court order from the disclosure under subsection (d); except that delayed notice may be given pursuant to section 5745 (relating to delayed notice). 5

6 18 Pa. C.S.A. 5743(b) (emphasis added). The exception to the notice requirement in subsection (b) is 5745, which permits delay of notice to the subscriber if such notice will have an adverse result (i.e., endangers life or physical safety, causes flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses or otherwise serious jeopardy of an investigation or delay of a trial). See 18 Pa. C.S.A. 5745(a)(1)(i). Subsection (c), which deals specifically with subscriber information, states in relevant part: (c) Records concerning electronic communication service or remote computing service (2) A provider of electronic communication services or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of the service, not including the contents of communications covered by subsection (a) or (b), to an investigative or law enforcement officer only when the investigative or law enforcement officer: (i) uses an administrative subpoena authorized by a statute or a grand jury subpoena; (ii) obtains a warrant issued under the Pennsylvania Rules of Criminal Procedure; (iii) obtains a court order for the disclosure under subsection (d); or... (iv) has the consent of the subscriber or customer to the disclosure. (3) An investigative or law enforcement officer receiving records or information under paragraph (2) is not required to provide notice to the customer or subscriber. 18 Pa. C.S.A. 5743(c) (emphasis added). This subsection contains a no-notice-required provision. Neither the Pennsylvania Supreme Court nor the Pennsylvania Superior Court has addressed the question of what constitutes content in the context of whether notice is required by the government when the government obtains a court order for a defendant s IP 6

7 subscriber name and address. However, federal and state jurisdictions around the country have consistently and unequivocally determined that IP addresses, physical locations, browser type, subscriber information, information such as tweets, logs of account usage, mailer header information (minus the subject line), and lists of outgoing addresses sent from an account are non-content information. See, for example, In re Zynga Privacy Litigation v. Zynga Game Network, Inc., 750 F.3d 1098, 1106 (9 th Cir. 2014); In re Google Inc. Cookie Placement Consumer Privacy Litigation, 988 F.Supp.2d 434 (D. Del. 2013); In re: 2703(d) Order, 787 F.Supp.2d 430, 436 (E.D. Va. 2011); Sams v. Yahoo!, Inc., No. CV JF, 2011 WL at *6-7 (N.D. Cal. May 18, 2011); People v. Harris, 36 Misc.3d 868, 871, 949 N.Y.S.2d 590 (2012); Reynolds v. Commonwealth of Virginia, 2014 WL (Va. Ct. App. May 27, 2014). See also In re Application of U.S. for an Order Directing a Provider of Elec. Commc n Serv. to Disclose Records to Gov t, 620 F.3d 304, (3d Cir. 2010); United States v. Reed, 575 F.3d 900, 917 (9 th Cir. 2009); Gilday v. Dubois, 124 F.3d 277, 296 n.27 (1 st Cir. 1997); In re iphone Application Litigation, 844 F.Supp.2d 1040, 1062 (2012). The information obtained via the court order dated April 11, 2013, was nothing more than non-content information and the Commonwealth was not obligated to give notice to Appellant of such order. III. Conclusion For the reasons set forth above, Appellant s judgment of sentence should be affirmed and his appeal dismissed. Accordingly, I enter the following: 7

8 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L 8

9 COMMONWEALTH OF PENNSYLVANIA : : v. : No : JAMES SELLARD : O R D E R AND NOW, this 16 th day of January, 2015, the Court hereby submits this Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. BY THE COURT: DAVID L. ASHWORTH JUDGE ATTEST: Copies to: Susan E. Moyer, Assistant District Attorney James J. Karl, Chief Public Defender