499 Internet Search and Seizure in United States v. Forrester: New Problems in the New Age of Pen Registers I. INTRODUCTION Katherine Kressman Taylor‘s well-known short story, ―Address Unknown,‖ depicts two business associates and friends who are corresponding through letters.1 Max is a Jew living in America and conducting their shared business venture of selling artwork. The other correspondent, Martin, lives in Nazi Germany and sympathizes with the Nazi cause. Max becomes hostile after Martin refuses to hide Max‘s younger sister Griselle from Nazi troops, and she is killed.2 In retaliation, Max starts writing strange codes in his letters to Martin that appear as numbers and names of paintings. The codes look highly suspicious and are designed to make it appear as if Martin is a member of an underground movement smuggling Jews out of the country. Martin responds with confusion and asks Max to stop writing him the strange letters because his mail is being monitored by the Nazi regime.3 The letters continue, becoming more frequent and extreme. Martin writes back infuriated. He tells Max that he has no anti-Nazi sentiments and feels that Max is trying to sabotage him. The story ends with a returned letter from Max stamped ―addressee unknown,‖ implying that Martin had been captured by the Nazi regime.4 Taylor‘s story is a depiction of the Nazi government‘s control over civilian communication during its years of European domination. Other governments have had similar authority to confiscate and search the public‘s mail and other communication at will. The Framers of the United States Constitution contemplated the danger of infringement of freedom presented by governments with unbridled control over citizen property and communication. The Framers wrote the Fourth Amendment to protect the people against these abuses of government power and to safeguard certain liberties: 1. Katherine Kressman Taylor, Address Unknown, in THE ELOQUENT SHORT STORY 232 (Lucy Rosenthal ed., 2004). 2. Id. at 250–51. 3. Id. at 252–55. 4. Id. at 256.500 BYU JOURNAL OF PUBLIC LAW [Volume 22 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Although the example of government control in Taylor‘s story is an extreme one, it illustrates the dangers of too much government interference—interference that must be checked. The fine line between public welfare and individual privacy has become much more attenuated as the country‘s tools for accessing communication and information have become more expansive. The innovation of the telephone and the Internet has required modern legislatures to draw a line where government control ends and individual privacy begins regarding communication sent through channels provided by private corporations. In 2008, United States v. Forrester presented a new question to the judiciary regarding the search and seizure of private communication: can law enforcement entities access IP numbers5 and email to and from addresses used by a private citizen without first proving probable cause?6 While the Ninth Circuit answered in the affirmative,7 the Court‘s analysis raises questions about the rectitude of the government accessing channeling information in private communications. Part II of this case note discusses the use of pen registers and the history of their statutory regulation. Part III describes the facts of United States v. Forrester. Part IV outlines the Court‘s reasoning in that case. Part V discusses and argues against the Court‘s holding that channeling information falls outside a citizen‘s reasonable expectation of privacy.8 Part VI disputes the Court‘s assertion that the seizure of IP and email to/from addresses does not violate a citizen‘s right to keep the contents of communications private. 5. IP numbers are ―[t]he numerical sequence that serves as an identifier for an Internet server. An IP address appears as a series of four groups of numbers separated by dots. The first group is a number between 1 and 255 and the other groups are a number between 0 and 255, such as 192.135.174.1. Every server has its own unique address.‖ Dictionary.com, s.v. ―IP Address,‖ available at http://dictionary.reference.com /browse/IP%20Address (last visited Dec. 21, 2007). 6. United States v. Forrester, 512 F.3d 500 (9th Cir. 2008). 7. Id. at 1050. 8. Id. at 1048.499] INTERNET SEARCH AND SEIZURE 501 II. PEN REGISTERS AND THE HISTORY OF THEIR REGULATION Pen registers record or decode ―dialing, routing, addressing, or signaling information‖9 transmitted through telecommunications carriers like telephone companies and Internet Service Providers (ISPs). Pen registers were originally used to record the telephone numbers dialed to and from a particular phone.10 However, in 2001 the US Patriot Act broadened this definition to include devices that could track routing information over the Internet.11 Statutes and case law have established protections against the seizure of telephone and Internet communications. Under 18 U.S.C.A. §2511, the Electronic Communications Privacy Act (ECPA), it is illegal for employees of these telecommunications carriers to intercept and disclose any wire, oral, or electronics communications including routing information.12 However, telecommunications carriers are required to carry pen registers or similar technology that allow the interception of wire and electronic communications upon the issue of a court order.13 In the past, government agents who applied for such a court order had to prove probable cause. In Katz v. United States, the Supreme Court stated that search and seizure does not apply only to physical property. It can apply to other communications including communication transmitted through a telephone.14 Generally, probable cause is required in order to clear the constitutional bar for search and seizure.15 This