Courtney v. the State , 340 Ga. App. 496 ( 2017 )

FIRST DIVISION
DOYLE, C. J.,
ANDREWS and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 17, 2017
In the Court of Appeals of Georgia
A16A1668. COURTNEY v. THE STATE. DO-057
DOYLE, Chief Judge.
Christopher Courtney was charged with sexual exploitation of children by
distributing child pornography from his computer.1 We granted Courtney’s
application for interlocutory appeal to consider whether the trial court erred by
denying his motion to suppress identifying internet subscriber information obtained
by police pursuant to an administrative subpoena issued under OCGA § 16-9-108 (a).
Because Courtney lacks standing to challenge the search of his internet provider
(“IP”) for identifying information, we affirm.
1
OCGA § 16-12-100 (b) (1) (5).
“‘On appellate review of a ruling on a motion to suppress, the trial court’s
findings on disputed facts will be upheld unless clearly erroneous, and its application
of the law to undisputed facts is subject to de novo review.’”2
Here, the relevant facts are undisputed. A detective with the Liberty County
Sheriff’s Office monitors the internet for child pornography activity. After noticing
an increase in activity from a certain IP address, the detective used an “administrative
subpoena,” issued by the district attorney’s office, to obtain identifying information
from the IP – CenturyTel/CenturyLink (“Century”) – including the physical address
associated with the IP address.3 Once Century provided the physical address, the
detective obtained a subpoena from the magistrate court and searched computers at
the residence. That search led to Courtney’s arrest.
Courtney moved to suppress the information obtained from Century, arguing
that the detective’s use of an administrative subpoena pursuant to OCGA § 16-9-108
2
State v. Walker, 295 Ga. 888, n. 1 (764 SE2d 804) (2014), quoting Registe v.
State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012).
3
The subpoena specifically references OCGA §§ 16-9-108, 45-15-10, and 45-
15-17. OCGA §§ 45-15-10 and 45-15-70, which grant the Attorney General authority
to prosecute and investigate matters involving State affairs, do not apply to this case,
which involves an alleged violation of OCGA § 16-12-100 (b) and a subpoena issued
by an assistant district attorney, not the Attorney General.
2
(a), rather than a search warrant or court order pursuant to OCGA § 16-9-109 (b), was
illegal because the latter statute provides the exclusive mechanism through which an
IP may be compelled to disclose subscriber information. The trial court denied the
motion but certified its ruling for immediate review. This application and appeal
followed.
Before we can consider Courtney’s challenge to the legality of the search of his
subscriber information from Century, we must consider whether Courtney has
standing to challenge that search. “[D]emonstrating standing is a threshold burden for
suppression of the evidence.”4 “In order to claim the protection of the Fourth
Amendment against unreasonable search and seizure, a defendant must demonstrate
that he personally has an expectation of privacy in the place searched, and that his
expectation is reasonable.”5
This Court previously has held that an internet service customer has no
reasonable expectation of privacy in subscriber information that he voluntarily
conveys to an IP, noting “that the United States Supreme Court and Georgia appellate
4
Hampton v. State, 295 Ga. 665, 669 (2) (763 SE2d 467) (2014), citing
Rakas v. Illinois, 439 U. S. 128, 130, n.1 (99 SCt 421, 58 LE2d 387) (1978).
5
(Punctuation omitted.) Ensley v. State, 330 Ga. App. 258 (765 SE2d 374)
(2014), quoting Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008).
3
courts have held that a person has no reasonable expectation of privacy in information
voluntarily conveyed to another.”6 Accordingly, under Ensley, Courtney lacked
standing to bring a Fourth Amendment challenge to the search of Century for his
subscriber information.
Here, however, Courtney contends that OCGA § 16-9-109 (b) grants him a
reasonable expectation of privacy in the information listed therein, including his name
and address, because it defines the circumstances under which an IP may be
compelled to disclose that information to a law enforcement agency. This argument
is without merit because, as explained below, OCGA § 16-9-109 (b) addresses the
disclosure obligations of third-party IPs, not individual criminal defendants.
Title 16, Chapter 9, Article 6 is the “Georgia Computer Systems Protection
Act” (“the Act”).7 Part 3 of the Act is entitled “Investigation of Violations.” OCGA
§ 16-9-108 (a) provides that in any investigation of certain statutory violations,
including the one Courtney is charged with violating – OCGA § 16-12-100 –
the Attorney General or any district attorney shall have the power to
administer oaths; to call any party to testify under oath at such
6
Ensley, 330 Ga. App. at 258-259 (collecting cases), citing Hatcher v. State,
314 Ga. App. 836, 837-839 (1) (726 SE2d 117) (2012) (physical precedent only).
7
OCGA § 16-9-90.
4
investigation; to require the attendance of witnesses and the production
of books, records, and papers; and to take the depositions of witnesses.
The Attorney General or any such district attorney is authorized to issue
a subpoena for any witness or a subpoena to compel the production of
any books, records, or papers.
OCGA § 16-9-109, which is more narrow, addresses only disclosures by IPs.
Subsection (a) of that Code section provides that law enforcement units and
prosecutors may require IPs to disclose the contents of electronic communications if
they obtain a search warrant from an appropriate court. Subsection (b) provides that:
(1) Any law enforcement unit [or prosecutor] may require [an IP] to
disclose a record or other information pertaining to a subscriber to or
customer of such service, exclusive of the contents of communications,
only when any law enforcement unit, the Attorney General, or any
district attorney: (A) Obtains a search warrant as provided in Article 2
of Chapter 5 of Title 17; (B) Obtains a court order for such disclosure
under subsection (c) of this Code section; or (C) Has the consent of the
subscriber or customer to such disclosure.
(2) A provider of electronic communication service or remote computing
service shall disclose to any law enforcement unit, the Attorney General,
or any district attorney the: (A) Name; (B) Address; (C) Local and long
distance telephone connection records, or records of session times and
durations; (D) Length of service, including the start date, and types of
service utilized; (E) Telephone or instrument number or other subscriber
5
number or identity, including any temporarily assigned network address;
and (F) Means and source of payment for such service, including any
credit card or bank account number of a subscriber to or customer of
such service when any law enforcement unit uses a subpoena authorized
by Code Section 16-9-108, 35-3-4.1, 5-15-17 or a grand jury or trial
subpoena when any law enforcement unit complies with paragraph
(1) of this subsection.
Thus, OCGA § 16-9-109 (b) sets forth the process by which a district attorney
“may require [an IP] . . . to disclose [certain subscriber information].”8 Nothing in this
Code section prohibits the IP from disclosing the information to the district attorney,
law enforcement, the Attorney General, or for that matter, anyone else. OCGA § 16-
9-109 (b) does not grant Courtney a reasonable expectation of privacy in subscriber
information he voluntarily conveyed to the IP. Accordingly, he does not have
standing to challenge the search, and we affirm the trial court’s denial of his motion
to suppress.
Judgment affirmed. Andrews and Ray, JJ., concur.
8
(Emphasis supplied.)
6