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Media Alerts - United States v. Wheelock - Eighth Circuit
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December 5, 2014
  United States v. Wheelock - Eighth Circuit
Headline Eighth Circuit panel affirms use of administrative subpoena to procure internet subscriber information and mandatory minimum sentence for receipt of child pornography

Area of Law Fourth Amendment; Sentencing

Issue(s) Presented Whether use of an administrative subpoena to procure internet service subscriber information violates the Fourth Amendment and federal and state statutes, as well as whether the mandatory minimum sentence for receipt of child pornography arbitrarily punishes receipt more harshly than possession.

Brief Summary Using an administrative subpoena to Comcast, Minneapolis police connected Defendant to a computer downloading child pornography. Based on this data, police received and executed a search warrant on Defendant's home, and found several hard drives, DVDs, and CDs containing child pornography, as well as a computer actively downloading it. Ultimately, Defendant pled guilty to receipt of child pornography and was sentenced as a repeat offender to a minimum mandatory sentence of fifteen years in prison.

On appeal, Defendant challenged the use of an administrative subpoena to obtain information from Comcast, claiming it was a violation of his Fourth Amendment privacy rights. He also challenged the constitutionality of his mandatory minimum sentence, because by statute the mandatory minimum for receipt of child pornography is fifteen years, whereas for possession it is only ten years. Defendant argued that the mandatory minimum sentence arbitrarily punishes receipt more harshly than possession.

A panel of the Eight Circuit summarily rejected the administrative subpoena challenge. There is clear, binding Eighth Circuit precedent holding that the Fourth Amendment does not protect information revealed to a third party, and later conveyed by the third party to the government. Because Comcast, a third party, was in possession of Defendant's subscriber data, Defendant had no reasonable expectation of privacy in it. The panel noted that every federal court to address this issue has found that subscriber information provided to an internet provider is not protected by the Fourth Amendment.

Defendant further claimed that Minnesota's internet privacy statute prevented the disclosure, but the language of the statute itself requires the disclosure of information "to an investigative or law enforcement officer" where the information is requested through an administrative subpoena. The subpoena was properly applied for and issued in this case, and therefore suppression was not warranted.

As to the mandatory minimum sentence challenge, Congress established the minimums for receipt and possession of child pornography, and decided to punish receipt more harshly. To succeed in his challenge, Defendant needed to demonstrate that Congress's line drawing between these offenses was "totally arbitrary" under a "rational basis" inquiry.

Defendant contended that possession necessarily requires receipt, and conversely, that receipt necessarily requires possession. As such, they should be punished the same. However, the panel held that Congress's line drawing was not arbitrary. Intentional receipt of child pornography contributes to and furthers the market for child pornography, whether or not the person retains possession. Possession, conversely, does not necessarily further the market or spread the harm beyond the possessor. For example, someone could come to possess child pornography by accident, such as someone who was trying to access or purchase adult pornography. The Eight Circuit held that because the harms flowing from possession and knowing receipt differ, it is not irrational to punish them differently.

The full text of the opinion may be found at Text

Panel Chief Judge Riley and Circuit Judges Bye and Wollman

Date of Issued Opinion November 20, 2014

Decided Affirmed

Docket Number 14-1504

Counsel Laura Provinzino for Plaintiff and Alan Margoles for Defendant

Author Chief Judge Riley

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/05/2014 03:52 PM     8th Circuit  

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