## Facts

- On July 8, 2003, FBI Special Agent Gregory Zack, working undercover, entered a Yahoo-administered online chat group involving child pornography.
- Zack observed that a user with the screen name “markie_zkidluv6” uploaded pornographic images of children on June 22, 2003, and again on July 10, 2003.
- The FBI served an administrative subpoena on Yahoo and obtained subscriber information for the “markie_zkidluv6” account and the Internet-protocol (IP) addresses associated with the uploads.
- The FBI used publicly available tools to identify the internet service provider (ISP) associated with the IP addresses, then subpoenaed the ISP for customer information tied to the account.
- The ISP response provided an email address and a telephone number; the FBI then subpoenaed the telephone company and obtained additional subscriber information, including the name Marques Bynum and a physical address in North Carolina (his mother’s home).
- In late September 2003, Zack saw a third upload from the same user, this time a pornographic video.
- Zack reviewed the user’s profile information, which included a photo of Bynum in a bedroom and a self-description identifying the user as a single male living in North Carolina.
- Based on the information collected, the FBI sought and obtained a federal search warrant for the North Carolina residence.
- In December 2003, agents executed the warrant, located a laptop in the bedroom shown in the profile photo, and found a large quantity of child pornography on the computer, including the images and video that had been uploaded.
- Bynum was charged with transporting and possessing child pornography.
- Before trial, Bynum moved to suppress the evidence seized during the search, arguing that the FBI’s use of subpoenas and its warrant request violated the Fourth Amendment.
- The district court denied the motion to suppress, Bynum was convicted, and he appealed.

## Issues

1. Did the FBI violate the Fourth Amendment by using administrative subpoenas to obtain subscriber information and IP-address information from service providers without first obtaining a warrant?
2. Was the search warrant for the residence supported by probable cause, such that the district court properly denied Bynum’s motion to suppress?

## Decision

- The Fourth Circuit affirmed.
- The court upheld the denial of the motion to suppress, concluding that obtaining subscriber and IP-address information from third-party providers by subpoena did not violate the Fourth Amendment.
- The court also upheld the warrant-based search and the resulting seizure of the laptop and child-pornography files.

## Legal Principles

- The Fourth Amendment is implicated only when the government conducts a “search” or “seizure” within the meaning of the Amendment; a “search” generally requires an invasion of a reasonable expectation of privacy.
- Information voluntarily conveyed to, and maintained by, third parties (such as basic subscriber information held by internet and telephone providers) is ordinarily not protected by a reasonable expectation of privacy for Fourth Amendment purposes.
- Administrative subpoenas authorized by statute may be used to obtain non-content business records from providers; the constitutional question focuses on whether the target has a reasonable expectation of privacy in the records sought.
- IP-address and subscriber-account identifiers used to route communications are treated as addressing or routing information maintained by providers, not the content of communications, and may be obtained through lawful process short of a warrant when statutes permit.
- A search warrant is valid when, under the totality of the circumstances, the supporting affidavit establishes a fair probability that evidence of a crime will be found in the place to be searched; reviewing courts give deference to a magistrate judge’s probable-cause determination.

## Conclusion

United States v. Bynum upheld the government’s use of administrative subpoenas to obtain subscriber and IP-address information from service providers in a child-pornography investigation and held that the subsequent warrant to search the identified residence was supported by probable cause. Because the Fourth Amendment was not violated and the warrant-based search was lawful, the Fourth Circuit affirmed the denial of suppression and left Bynum’s convictions in place.


United States v. Bynum, 604 F.3d 161 (2010)