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United States v. Shultz

United States District Court, D. Kansas

January 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY SHULTZ, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Anthony Shultz' Motion to Suppress and for Return of Property (Doc. 67) and Motion to Suppress Evidence for Violation of Fed. R. Crim. P. 41 (Doc. 69). For the reasons stated below, the Court denies both motions.

         I. Factual and Procedural Background

         According to Shultz, between April 21, 2016, and June 12, 2016, the FBI issued 13 administrative subpoenas in its attempt to identify a person reportedly producing and distributing child pornography in the Philippines. In the subpoenas, the FBI sought information concerning specific phone numbers, email addresses, IP addresses, the name “Dean Hendrickson, ” the name “Anthony Schwartzendruber, ” the username “Maxwell Makati, ” and the Skype ID “MaxMakati49.” The recipients of these subpoenas included Yahoo! Inc., Skype, Cox Communications, Dropbox.com, Google Inc., PayPal, AT&T, and Verizon Wireless.

         On June 16, 2016, U.S. Magistrate Judge Gale for the District of Kansas issued two search warrants related to the investigation of Shultz-one to Yahoo!, Inc. and one to Dropbox, Inc. Both warrants identified the subject property as located in the Northern District of California. On July 18, 2016, U.S. Magistrate Judge Birzer issued a warrant to search Shultz' residence based on an affidavit prepared by FBI Special Agent Michael Daniels (“SA Daniels”). The FBI executed the search warrant on Shultz' residence and interviewed Shultz on July 20, 2016.

         On July 21, 2016, the Government filed a four-count complaint against Shultz alleging violations of laws regarding illicit sexual conduct in a foreign place, production of child pornography, distribution of child pornography, and identity theft. Shultz was indicted on August 16, 2016, for the same alleged offenses. On April 12, 2017, a superseding indictment charged Shultz with the following: two counts of engaging in illicit sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423; three counts of production of child pornography in violation of 18 U.S.C. § 2251; two counts of sex trafficking of children in violation of 18 U.S.C. §§ 1591, 1594, and 1596; one count of selling or buying of children in violation of 18 U.S.C. § 2251A; one count of distribution of child pornography in violation of 18 U.S.C. § 2252A; one count of possession of child pornography in violation of 18 U.S.C. § 2252A; and one count of identity theft in violation of 18 U.S.C. § 1028.

         Shultz filed the motions currently before the Court on December 18, 2017. The Court held a hearing on the motions on January 12, 2018.

         II. Analysis

         In his motions to suppress, Shultz asserts that the Government utilized administrative subpoenas to obtain information from third parties in violation of the Fourth Amendment and the Video Privacy Protection Act (“VPPA”), that the affidavit in support of the search warrant for his residence lacked probable cause, and that Magistrate Judge Gale exceeded his authority when he issued search warrants to be executed in California. Shultz seeks an order suppressing all evidence derived from the administrative subpoenas and search warrants, and requests the return of property seized from him. The Court will address each motion in turn.

         A. Motion to suppress evidence derived from administrative subpoenas and from the search of Shultz' residence (Doc. 67)

         Shultz argues that the Government's use of administrative subpoenas to obtain information from third parties violated his Fourth Amendment rights, that the Government's use of administrative subpoenas to obtain information from third parties violated the VPPA, and that the affidavit in support of the warrant to search Shultz' home lacked probable cause. Shultz' arguments lack merit.

         1. The government properly utilized administrative subpoenas to obtain information

         Shultz' arguments regarding the Government's use of administrative subpoenas fail.

         First, the government did not engage in a warrantless search in violation of the Fourth Amendment because Shultz did not have a reasonable expectation of privacy with regard to the information subpoenaed from third parties. Second, Shultz cannot establish a violation of the VPPA as he cannot show that the Government obtained personally identifiable information (“PII”) as defined by the VPPA, and regardless, the Government acted pursuant to explicit statutory authorization when it issued the subpoenas.

         a. Reasonable expectation of privacy

         The Fourth Amendment protects citizens from “unreasonable searches and seizures” conducted by state or federal government officials.[1] “A search only violates an individual's Fourth Amendment rights if he or she has a ‘legitimate expectation of privacy in the area searched.' ”[2] Courts employ a two-part test in determining whether a reasonable expectation of privacy exists. First, the defendant must demonstrate the he “manifested a subjective expectation of privacy in the area searched.”[3] Second, the Court asks “whether society is prepared to recognize that expectation as objectively reasonable.”[4] As the party seeking suppression, Shultz “has the burden of adducing facts” at the suppression hearing indicating that his rights were violated.[5]

         Without citation, Shultz asserts that “customers of service providers such as the recipients of the administrative subpoenas issued in this case have a reasonable expectation of privacy in their personally identifiable and other account information.” Citing Tenth Circuit precedent, the Government argues that it merely sought subscriber information provided by Shultz to third parties, and that this information is not protected by the Fourth Amendment.[6]

         In United States v. Perrine, [7] the Tenth Circuit recognized that “[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation.”[8] Shultz has not identified any authority contradicting the Tenth Circuit's holding and has not sought to distinguish the information obtained here from the subscriber information addressed in Perrine.[9] Indeed, Shultz does not challenge the Government's characterization of the information requested as subscriber information. Accordingly, Shultz has failed to identify facts indicating that he had a reasonable expectation of privacy in the records obtained via administrative subpoena.

         b. VPPA

         The VPPA prohibits “video tape service providers” from knowingly disclosing PII except as authorized by law.[10] PII “obtained in any manner other than as provided in [the VPPA] shall not be received in evidence” in a subsequent legal proceeding.[11] The VPPA broadly defines a video tape service provider to mean “any person, engaged in the business, . . . of rental, sale or delivery of prerecorded video cassette tapes or similar audio visual materials.”[12] PII is defined as including “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”[13]

         Shultz argues that the information obtained pursuant to the administrative subpoenas should be suppressed under § 2710(d) because the recipients of the subpoenas are video service providers and they provided PII to the Government. Notably lacking from Shultz' motion, perhaps by design, is any discussion of the definition of PII as that term is defined by the VPPA. During oral argument, Shultz advocated for an exceptionally broad definition of PII. He argued that the term “services” in the phrase “specific video materials or services” is completely divorced from and not modified by “video” or “specific video.” Thus, according to Shultz, the VPPA may be violated (1) by identifying a person as having requested or obtained specific video materials from a video tape service provider, or (2) by identifying a person as having requested or obtained any service[14] from a video tape service provider. Further, Shultz claims that if not done in accordance with the VPPA's disclosure provisions, the simple identification of a person as a consumer of the provider violates the VPPA, regardless of whether the provider also identifies specific goods or services the consumer sought, and regardless of whether the consumer requested or obtained audio visual materials or audio visual services.

         Shultz requests the Court to adopt a broadly sweeping definition of PII because without it, his argument fails. He does not allege that the Government sought or received any information relating to video services or video materials obtained or requested by Shultz, let alone specific video materials or services.[15] Nor does he allege that the government has relied upon or intends to introduce any such evidence. Rather, Shultz admits that the subpoenas requested information including names, addresses, IP addresses, telephone numbers, credit cards, and internet usage information such as log-in times and duration.

         Shultz points to no authority to support his proposed interpretation of the term PII; nor has the Court located any. Although the Tenth Circuit has not addressed the definition of PII for purposes of the VPPA, courts that have addressed the meaning of PII have uniformly applied an interpretation linked to the disclosure of video materials or video services obtained by a specific individual. For example, the Third Circuit defines PII as information “that identifies a specific person and ties that person to particular videos that the person watched.”[16] Courts have also rejected Shultz' argument that merely identifying an individual as a consumer violates the

         VPPA.[17]

         In accordance with every other court to address the issue, as well as the legislative history surrounding the enactment of the VPPA, [18] this Court finds that the term “specific video” in the definition of PII modifies not only the word “material, ” but also the word “services.” Since Shultz has not identified any information relating to video material or video services revealed in response to the administrative subpoenas, he cannot establish that the Government obtained, introduced, or intends to introduce PII as defined for purposes of the VPPA. Accordingly, it is unnecessary to address the Government's argument regarding the scope of the term “video tape service provider.”[19] Shultz' request to suppress information obtained in response to the administrative subpoenas is denied.

         c. Title, 18 U.S.C. § 3486 and the Stored Communications Act

         Though Shultz' motion is properly denied on the grounds discussed above, the Court also notes that the Government acted pursuant to explicit statutory authorization when it issued the administrative subpoenas in question. Congress has broadly authorized the Government “[i]n any investigation of . . . a Federal offense involving the sexual exploitation or abuse of children, ” to issue administrative subpoenas for “the production of any records or other things relevant to the investigation.”[20] The lone limitation in § 3486 applies to providers of electronic communication services and remote computing services under the Stored Communication Act (“SCA”).[21] This limitation, however, does not prohibit the use of ...


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