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Media > Newsletters > Law Enforcement Bulletin > August 2013 > Search and Seizure (Electronic Search): State of Ohio v. Lemasters

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Search and Seizure (Electronic Search): State of Ohio v. Lemasters

Question: Can you obtain Internet files from a third-party provider with an investigative subpoena even though the Electronic Communications Privacy Act (ECPA) requires a court order or warrant?
Quick Answer: Yes, but only if the suspect is not entitled to a reasonable expectation of privacy based on his conduct. Otherwise, a warrant or court order is required.

State of Ohio v. Lemasters, Twelfth Appellate District, Madison County, July 8, 2013
Facts: As part of an Internet Crimes Against Children Task Force, Detective Marcus Penwell investigated social networking sites where adults solicit children for sexual activity and monitored file-sharing programs for the distribution of child pornography files. Using “Shareaze,” a file-sharing program, the detective was able to access and download child pornography from a computer with an IP address belonging to a Time Warner Cable customer. Penwell obtained an investigative subpoena, contacted Time Warner, and it determined that Donald Lemasters was the IP user. The Madison County Sheriff’s Office became involved and executed a search warrant on Lemasters’ home, seizing more than 170,000 images of child pornography from his computer and DVDs made from downloaded material. Lemaster argued that the investigative subpoena sent to Time Warner was improper and in violation of the ECPA. The court determined the investigative subpoena was proper because the ECPA did not apply.
Importance: The ECPA requires that law enforcement obtain a court order or a warrant to obtain electronic records from the third-party provider. However, when a suspect subscribes to an Internet service and openly shares files with third parties through file-sharing programs, he is not entitled to a reasonable expectation of privacy. As a result, the ECPA does not apply and an investigative subpoena is proper. The key is whether the suspect, through his conduct, has a reasonable expectation of privacy.
Keep in Mind: If Lemasters had not used file sharing or posted on public websites, Detective Penwell would have been required to obtain a court order or warrant pursuant to the ECPA.