UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 21-204 (BAH)
MATTHEW BLEDSOE, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
On January 6, 2021, a joint session of the United States Congress convened at the United
States Capitol, with then-Vice President Mike Pence presiding, to carry out the constitutional
duty of certifying the vote count of the Electoral College of the 2020 Presidential Election.
Every four years, since this country’s first contested presidential election in 1796 and over the
next 220 years, Congress’s certification of the electoral college vote has marked the peaceful
transition of power from one presidential administration to another, with this event respectfully
observed by American citizens. Before this ritual of democracy could be completed on January
6, 2021, however, a rioting mob swarmed the Capitol grounds and breached the Capitol building,
forcing Congress to halt the electoral vote count for hours. Elected representatives,
congressional staff, and members of the press were then evacuated under police guard and
experienced the terror of hiding from the mob. Meanwhile, many rioters celebrated this chilling
historic moment by photographing and recording both themselves and others on restricted
grounds surrounding and inside the Capitol Building and promptly posting their user-generated
content online to various social media platforms. Given the security precautions in place daily
during normal operations to prevent entry into the Capitol Building of even a single unauthorized
person, this breach by hundreds of rioters on January 6, 2021, was nothing less than catastrophic.
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As Americans across the country watched the events unfold at the Capitol in real-time, an
investigation began to identify, arrest, and prosecute the hundreds of rioters who unlawfully
entered the Capitol building and participated in the assault on the constitutional ritual of
confirming the results of a presidential election. As part of that investigation, and in the context
of the emergency situation at the Capitol, the Federal Bureau of Investigation (“FBI”) requested
from Facebook identification information for accounts using its platform to broadcast videos of
this highly public event that were live-streamed or uploaded to Facebook while the account user
was physically in the U.S. Capitol during the time period when the mob was storming and
occupying the Capitol building. Armed with the account identifiers, in the days that followed,
the FBI then sought search warrants requiring Facebook to disclose various records and content
associated with the accounts that would constitute evidence of specific federal criminal law
violations.
Defendant Matthew Bledsoe is the owner of one such account. He was charged and
convicted by a jury, on July 21, 2022, on all five counts against him for unlawfully entering into
and remaining in the U. S. Capitol and corruptly acting with the intent to obstruct, influence, and
impede Congress’s certification of the Electoral College vote in the 2020 election, as well as for
related acts underlying his unlawful entry into and subsequent conduct within the Capitol on
January 6, 2021, in violation of 18 U.S.C. §§ 1512(c)(2), 1752(a)(1), 1752(a)(2), and 40 U.S.C.
§§ 5104(e)(2)(D) and 5104(e)(2)(G). See generally Indictment, ECF No. 23; Jury Verdict, ECF
No. 219.
Before trial, defendant moved to suppress all evidence from the non-public portions of
his Facebook and Instagram accounts, and any evidence and information derived from the
exploitation of that evidence, obtained from the execution of a search warrant on his Facebook
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and Instagram accounts (“Social Media Warrant”). Def.’s Mot. Suppress Data Recovered From
Facebook and Instagram Accounts and Derivative Evid. and Info. (“Def.’s Mot.”) at 1, ECF No.
182. He asserts two grounds for suppression: first, defendant argues that, under Carpenter v.
United States, 138 S. Ct. 2206 (2018), the government’s initial request to Facebook seeking
identifying information of accounts broadcasting videos by persons inside the Capitol during the
events of January 6 was a Fourth Amendment search and thus required a warrant, Def.’s Suppl.
Mot. Suppress Data Recovered From Facebook and Instagram Accounts and Derivative Evid.
and Info. (“Def.’s Suppl.”) at 2–4, ECF No. 184; second, he argues that, even if obtaining the
initial identifying account information from Facebook presents no Fourth Amendment violation,
the Social Media Warrant lacked probable cause and the good-faith exception to the exclusionary
rule does not save it, Def.’s Mot. at 2–3.
The first ground asserted by defendant raises a novel Fourth Amendment issue in this
Circuit: whether an account user has a protectible Fourth Amendment interest in non-content
information derived from account activity records revealing that user-generated content of a
highly public event occurred at a particular location and time. During the pretrial conference, on
July 15, 2022, this Court denied defendant’s motion to suppress in an oral ruling, with this
Memorandum Opinion to follow to explain fully why, under the unique facts and circumstances
of this case, defendant has not established that he had a reasonable expectation of privacy in the
non-content account information disclosed by Facebook. Min. Order (July 15, 2022). The
reasoning for denial of defendant’s motion to suppress is set out below.
I. BACKGROUND
The facts and procedural history below describe the information relevant to defendant’s
motion to suppress.
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A. The January 6, 2021 Attack on the Capitol
Two months after the November 3, 2020 presidential election, on January 6, 2021, a joint
session of the United States Congress convened at the Capitol to certify the vote count of the
Electoral College of the 2020 Presidential Election. Gov’t’s Opp’n Def.’s Mot. Suppress
(“Gov’t’s Opp’n”), Ex. A (Sealed), Aff. of FBI Special Agent Mark D. Brundage Supp. Appl.
Search Warrant (“Social Media Warrant Aff.”) ¶ 11, ECF No. 193-1. The joint session began at
approximately 1:00 p.m., with then-Vice President Mike Pence presiding. Id. By 1:30 p.m., the
United States House of Representatives and the United States Senate adjourned to separate
chambers within the Capitol to resolve an objection raised in the joint session. Id. Vice
President Pence continued to preside in the Senate chamber. Id.
As the House and Senate proceedings took place, a large crowd of protestors gathered
outside the Capitol. Id. ¶ 12. “[T]emporary and permanent barricades were in place around the
exterior of the . . . building, and [U.S. Capitol Police] were present and attempting to keep the
crowd away from the Capitol building and the proceedings underway inside.” Id. At around
1:00 p.m., the crowd “broke through the police lines, toppled the outside barricades protecting
the U.S. Capitol, and pushed past . . . law enforcement officers.” Id. ¶ 13. A group of rioters
outside of the Capitol began chanting “Hang Mike Pence.” Id. ¶ 15. The mob’s violence and
threats of violence then escalated.
Shortly after 2:00 p.m., multiple groups of rioters “forced entry” into the Capitol,
breaking windows and assaulting members of law enforcement, and mayhem broke out inside
the building. Id. ¶¶ 17, 19. Rioters broke windows and doors, destroyed property, stole
property, and attacked federal police officers. Id. ¶ 19. The individuals did not come unprepared
but carried weapons, including tire irons, sledgehammers, bear spray, and Tasers, and also took
police equipment from overwhelmed officers, including shields and batons. Id.
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During the ensuing chaos, law enforcement ordered then-Vice President Mike Pence,
House and Senate members, and all nearby staff and reporters into the Senate and House
chambers and locked down both locations. Id. ¶ 18. The lockdown did not deter the mob, and
rioters attempted to break into the House chamber, forcing law enforcement to draw their
weapons to protect the victims sheltering inside. Id. Subsequently, law enforcement ordered the
evacuation of lawmakers from the chambers for their safety. The rioting mob persisted in
seeking out and threatening members of Congress. Shortly after the evacuation, rioters broke
into the office of House Speaker Nancy Pelosi. Id. ¶ 21. The mob also breached the Senate
Chamber, and publicly available video shows an individual asking, “Where are they?” as the
rioters opened the door to the Senate Chamber. Id. ¶ 22. In another video, a rioter can be heard
asking, “Where the fuck is Nancy?” as the mob continued to scour the Senate Chamber. Id. ¶ 23.
Law enforcement was not able to ensure that the U.S. Capitol was cleared of the mob
until 6:30 p.m. Id. ¶ 29. Ultimately, the mob’s actions resulted in an hours-long halt to the
electoral vote count while elected representatives, congressional staff, and members of the press
hid in terror. The joint session, and thus the constitutional ritual of confirming the results of the
2020 Presidential Election, was “effectively suspended until shortly after 8:00 p.m.” Id. ¶ 30.
Publicly available video footage and photographs showed that many rioters used their cell
phones to record the events occurring in and around the U.S. Capitol by taking photos and videos
of themselves and others, and posting them online while the attack on the Capitol Building was
ongoing. In the hours and days following the riot, the identity of many rioters was unknown to
law enforcement agencies, and some still remain unidentified.
B. The FBI’s Emergency Disclosure Request to Facebook
To further the FBI’s immediate efforts to identify those responsible for committing
possible violations of federal laws within the U.S. Capitol on January 6, 2021, the FBI, observing
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the open and obvious use of cell phones by many rioters to record their and others unlawful
activity, sought information from Facebook, a social media platform where users can preserve
and distribute photographs and videos. Specifically, on January 6, 2021, the FBI requested that
Facebook identify “any users that broadcasted live videos which may have been streamed and/or
uploaded to Facebook from physically within the building of the United States Capitol during the
time on January 6, 2021, in which the mob had stormed and occupied the Capitol building.” Id.
¶ 40 (footnote omitted).
In making this request to Facebook for non-content user identification information, the
FBI relied on the procedures set forth in the Stored Communications Act (“SCA”), 18 U.S.C. §
2701 et seq. The SCA authorizes a provider of electronic communication services to disclose
voluntarily records or other information related to a customer, not including the contents of any
communications, “to a governmental entity, if the provider, in good faith, believes that an
emergency involving danger of death or serious physical injury to any person requires disclosure
without delay of information relating to the emergency.” 18 U.S.C. § 2704(c)(4). According to
the FBI agent who requested the information, “[b]ased on the nature of the conduct on January
6,” the government held an objectively reasonable belief that “those who perpetrated the
intrusion of the Capitol that day would commit other acts of violence based on apparent anger of
the results of the presidential election,” and thus, while at large, “posed a future danger of an
emergency involving danger of death or serious physical injury.” Decl. of FBI Special Agent
Michael E. Hess (“Hess Decl.”) ¶¶ 3, 5, ECF No. 214-1.
In response to the FBI’s request, Facebook made three separate disclosures, on January 6,
January 13, and January 22, 2021, voluntarily identifying Facebook and Instagram accounts that
fell within the scope of the FBI’s request. Id. ¶ 4. For each qualifying account responsible for
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streaming or uploading a video to Facebook from within the U.S. Capitol building during the
January 6, 2021 attack, Facebook disclosed both an Object ID, which is a unique, numeric code
assigned to any video uploaded to Facebook or Instagram Live, and an associated User ID,
which is a unique numeric code assigned to each Facebook or Instagram account, identifying the
account that posted content indicative of being inside the U.S. Capitol building during the
January 6 breach. Social Media Warrant Aff. ¶ 40 & nn.4 & 7. Subsequent searches by the FBI
of the publicly available portions of Facebook and Instagram using these User IDs revealed no
publicly available content associated with the accounts. Id. ¶¶ 43–44.
C. The Requested Warrant
Armed with the account identifiers, the FBI then sought search warrants requiring
Facebook to disclose various records and information associated with the voluntarily disclosed
User IDs. As relevant to this case, relying on the User IDs disclosed on January 22, 2021, the
FBI requested, and on March 3, 2021, a magistrate judge approved, a warrant to search twenty-
five Facebook and Instagram accounts associated with the disclosed user identifications. Gov’t’s
Opp’n, Ex. A (Sealed), Social Media Warrant, ECF No. 193-1. The warrant specifically directed
Facebook to disclose the contents of any available messages, posts, chats, or other
communications, photos, videos, location history, user information, transactional records related
to user account activity, and other records associated with the accounts, dating back to November
2020. Id. Att. B Part I at 5–9, ECF No. 193-1. The government attested that the requested
records constituted evidence of violations, inter alia, of 18 U.S.C. §§ 1752(a)(1)–(4) (unlawful
entry on restricted buildings or grounds); 1512(c)(2); (obstruction of Congress); 111 (assaulting a
federal agent); 231 (civil disorders), 371 (conspiracy); 372 (conspiracy to impede/assault federal
agents); 930 (possession of firearms and dangerous weapons in federal facilities); 641 (theft of
government property); 1361 (destruction of government property); 2101 (interstate travel to
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participate in riot); 1752(b)(1)(A) (using or carrying a weapon on restricted buildings or
grounds); and 40 U.S.C. § 5104(e)(2) (violent entry, disorderly conduct, and other offenses on
Capitol grounds), on January 6, 2021. Id. Att. B Part II at 10–11. The government explained
that the requested information could be used to establish (1) the account user’s identification or
location, (2) the account user’s state of mind “related to the criminal activity under
investigation,” (3) the user’s breach and unlawful entry of the Capitol building, and (4) “efforts
after the fact to conceal evidence of [the foregoing] offenses, or to flee prosecution for the
same,” among other pertinent matters. Id. Thus, review of such evidence would allow the FBI
not only to identify perpetrators of the January 6, 2021 riot but also to establish key elements of
any crimes the account users, their associates, friends, and co-conspirators committed while
participating in the Capitol attack that day.
In response to the warrant, Facebook produced the requested information, and law
enforcement, while reviewing the production, discovered that one of the identified Facebook
accounts disclosed on January 22, 2021, was associated with defendant.
D. Relevant Procedural History
With trial in this matter initially scheduled for August 1, 2022, and a pretrial conference
scheduled for July 15, 2022, the deadline for the filing of all pretrial motions was set for April 1,
2022. Scheduling Order (Feb. 2, 2022). Defendant subsequently moved to file any motions to
suppress by April 29, noting that he did not believe any such motion would “require an
evidentiary hearing to resolve.” Def.’s Unopposed Mot. Extend Deadlines for Filing Pretrial
Mots. ¶ 4, ECF No. 169; see Min. Order (Apr. 1, 2022) (granting the motion). On April 29,
2022, defendant filed the instant motion to suppress, as supplemented on May 1, 2022. On May
10, 2022, due to an opening in the Court’s calendar, the trial was rescheduled for July 18, 2022.
Min. Order (May 10, 2022). Subsequently, the government requested an extension of the
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briefing schedule for the suppression motion, with such motion becoming ripe for resolution on
June 3, 2022. Min. Order (May 17, 2022).
With the briefing concluded and neither party requesting an evidentiary hearing, after
hearing argument on defendant’s motion to suppress the Social Media Warrant at the three-hour
pretrial conference on July 15, 2022, the Court issued an oral ruling denying this motion, as well
as two other pretrial motions. Min. Order (July 15, 2022). Since then, both sides, with the
Court’s permission, have supplemented the record in support of their respective arguments in
connection with the suppression motion. Gov’t’s Suppl. Br. Resp. Def.’s Mot. Suppress
(“Gov’t’s Suppl.”), ECF No. 211; Gov’t’s Notice Decl. Supp. Gov’t’s Opp’n Def.’s Mot.
Suppress, ECF No. 214; Def.’s Unopposed Mot. Leave File Ex. Under Seal (Sealed) (“Def.’s
Mot. Seal”), ECF No. 221 (filing under seal Facebook’s production to the FBI in response to the
Social Media Warrant (“Facebook Return”)). As noted, the arguments concerning Facebook’s
initial voluntary disclosure to the FBI raise an issue of first impression in this Circuit, and
therefore this Memorandum Opinion explains the reasons for denial of the defendant’s motion to
suppress the Social Media Warrant.
II. LEGAL STANDARD
The Fourth Amendment prohibits law enforcement from conducting “unreasonable
searches and seizures,” and provides that “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.” U.S. CONST. amend. IV. A government search found to be in
violation of the Fourth Amendment’s protections is generally subject to the exclusionary rule,
requiring suppression of evidence obtained through unconstitutional means. United States v.
Weaver, 808 F.3d 26, 33 (D.C. Cir. 2015) (citing Mapp v. Ohio, 367 U.S. 643, 655 (1961);
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Weeks v. United States, 232 U.S. 383, 398 (1914)). Excluded evidence extends to both “the
primary evidence obtained as a direct result of an illegal search or seizure and . . . evidence later
discovered and found to be derivative of an illegality, the so-called fruit of the poisonous tree.”
Utah v. Strieff, 579 U.S. 232, 237 (2016) (cleaned up).
III. DISCUSSION
From the FBI’s investigative work stemming from the January 6, 2021 riot, defendant
identifies two purported Fourth Amendment violations, each of which he believes requires
suppression of any evidence obtained or derived from the Facebook Return. First, defendant
contends that Facebook’s voluntary disclosure, pursuant to the government’s emergency request,
of “accounts that were being used to stream and/or upload videos by persons who may have been
inside the Capitol when the events of January 6 were ongoing” violated his Fourth Amendment
rights because the responsive information provided by Facebook identifying user accounts
generating content “at a particular location during a specified time period” amounted to a Fourth
Amendment search requiring a warrant. Def.’s Suppl. at 2–3. Second, defendant contends that
the Social Media Warrant authorizing the search and seizure of data from non-public portions of
his social media accounts violated the Fourth Amendment because the search of his accounts was
without probable cause to believe that evidence of the alleged criminal activity would be found
in his accounts. Def.’s Mot. at 4–5. Based on these arguments, defendant sought the
suppression of all material from the non-public portions of his social media accounts obtained
pursuant to the Social Media Warrant that the government planned to admit at trial, i.e., thirty-
two exhibits sourced from the Facebook Return. Def.’s Mot. Seal at 2; see Gov’t’s Notice Exs.
at 3–5, ECF No. 213 (detailing the thirty-two exhibits culled from the Facebook Return that the
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government planned to admit at trial). All thirty-two exhibits were, in fact, admitted as evidence
during the trial. Rough Tr. Jury Trial (July 19, 2022, Afternoon Session) at 4, 12.
Each of defendant’s arguments is addressed separately below.
A. The January 22, 2021 Facebook Disclosure Was Not a Fourth Amendment
Search
Defendant asserts that the government’s acquisition of non-content information from
Facebook, a third-party electronic communication service provider, identifying which user
accounts engaged in certain activities during a specified time and at a particular location qualifies
as a Fourth Amendment search. The government counters that such account-usage information
implicates no protectable Fourth Amendment interest because the disclosure falls squarely within
the third-party doctrine. Gov’t’s Opp’n at 4–6. Indeed, the Supreme Court has held repeatedly
that “a person has no legitimate expectation of privacy in information he voluntarily turns over to
third parties,” Carpenter v. United States, 138 S. Ct. 2206, 2216 (2018) (quoting Smith v.
Maryland, 442 U.S. 735, 743–44 (1979)), “even if the information is revealed on the assumption
that it will be used only for a limited purpose” such as “in the ordinary course of [the third-
party’s] business,” id. (quoting United States v. Miller, 425 U.S. 435, 442–43 (1976)).
Defendant seizes on the Carpenter decision as necessitating a finding that the third-party
doctrine does not cover the acquisition of the records revealing the particular location of a user of
a third-party’s services during a specified time period. Def.’s Suppl. at 3. Thus, the key question
presented in this case is whether, under Carpenter, the government’s acquisition from Facebook
of non-content information derived from user-generated content of a highly public event that
reveals the user’s location, i.e., user-generated location information (“UGLI”), was a Fourth
Amendment search requiring a probable cause warrant.
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After a review of the current state of the law governing the application of the Fourth
Amendment to government requests for records and data that reveal location information,
defendant’s challenge to the data and records at issue in this case is addressed.
1. Fourth Amendment Application to Data Revealing Location
Information
The Fourth Amendment safeguards “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST.
amend. IV. “Not all government actions are invasive enough to implicate the Fourth
Amendment.” United States v. Warshak, 631 F.3d 266, 284 (6th Cir. 2010). Instead, “the
application of the Fourth Amendment depends on whether the person invoking its protection can
claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded
by government action.” Smith, 442 U.S. at 740.
To establish a legitimate expectation of privacy a defendant must demonstrate that his
conduct exhibits “an actual (subjective) expectation of privacy,” id. (quoting Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)), showing that “he seeks to preserve
[something] as private,” id. (alteration in original) (quoting Katz, 389 U.S. at 351), and that his
subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’”
id. (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)). Put another way, the defendant must
show that the expectation of privacy, “viewed objectively, is ‘justifiable’ under the
circumstances.” Id. (quoting Katz, 389 U.S. at 353); see also Minnesota v. Carter, 525 U.S. 83,
88 (1998) (“[I]n order to claim the protection of the Fourth Amendment, a defendant must
demonstrate that he personally has an expectation of privacy in the place searched, and that his
expectation is reasonable . . . .”). If the defendant meets that burden, then “official intrusion into
that private sphere [created by a reasonable expectation of privacy] generally qualifies as a
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search” under the Fourth Amendment and thus “requires a warrant supported by probable cause.”
Carpenter, 138 S. Ct. at 2213 (citing Smith, 442 U.S. at 740); Brennan v. Dickson, No. 21-1087,
2022 WL 3008030, at *7 (D.C. Cir. July 29, 2022) (“A ‘search’ for purposes of the Fourth
Amendment occurs when government action infringes a sphere an individual seeks to preserve as
private and the expectation of privacy is one society considers reasonable under the
circumstances.”).
To date, the Supreme Court has touched, without delving deeply into, the murky waters
of navigating how the government’s use of recent technological innovations should be
constrained by the Fourth Amendment. In Carpenter, the Supreme Court took its first dive at
sounding out the depths of when the government’s acquisition of a specific type of digital data—
personal location information maintained by a third-party—invades a person’s legitimate
expectation of privacy. At issue in Carpenter was the sufficiency, under the Fourth Amendment,
of the government’s use of court orders issued pursuant to the SCA, 18 U.S.C. § 2703(d), on a
showing that “falls well short of the probable cause required for a warrant,” Carpenter, 138 S.
Ct. at 2221, to obtain historical cell-site location information (“CSLI”) for a cell phone used by a
suspect in a series of robberies, where the responsive CSLI data spanned a period of 127 days
from one service provider and seven days from another provider, id. at 2212. The Supreme
Court considered “whether the Government conducts a search under the Fourth Amendment
when it accesses historical cell phone records that provide a comprehensive chronicle of the
user’s past movements.” Id. at 2211. After answering that question affirmatively, the Court
further “conclude[d] that the Government must generally obtain a warrant supported by probable
cause before acquiring such records.” Id. at 2221.
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These conclusions were based on the Court’s finding that “an individual maintains a
legitimate expectation of privacy in the record of his physical movements as captured through
CSLI.” Id. at 2217. Starting with the premise that “[a] person does not surrender all Fourth
Amendment protection by venturing into the public sphere” but instead maintains “a reasonable
expectation of privacy in the whole of their physical movements,” id. (citing United States v.
Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring in judgment) and id. at 415 (Sotomayor,
J., concurring)), the Court reasoned that while society reasonably expects law enforcement to
have the capability to pursue suspects “for a brief stretch,” id., for longer-term surveillance,
“society’s expectation has been that law enforcement agents and others would not . . . secretly
monitor and catalogue every single movement of an individual . . . for a very long period,” id.
(quoting Jones, 565 U.S. at 430 (Alito, J., concurring in judgment)). The government’s
acquisition of CSLI in Carpenter violated such reasonable expectations. In total, the requested
CSLI records provided “an all-encompassing record of the [cell phone] holder’s whereabouts . . .
, revealing not only his particular movements, but through them his ‘familial, political,
professional, religious, and sexual associations.’” Id. (quoting Jones, 565 U.S. at 415
(Sotomayor, J., concurring)); see also id. at 2218 (noting that “a cell phone . . . tracks nearly
exactly the movements of its owner[,] . . . faithfully follow[ing] its owner beyond public
thoroughfares and into private residences, doctor’s offices, political headquarters, and other
potentially revealing locales”). In sum, the government’s acquisition of the CSLI records over a
lengthy period of time exposed much more than just an individual’s discrete movements in the
public sphere and thus presented legitimate and justifiable privacy concerns implicating Fourth
Amendment protection.
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Although a cell phone holder continuously reveals his location to his wireless carrier and
the requested CSLI records were generated for commercial purposes, the Carpenter Court
declined to extend the third-party doctrine to cover the cell phone location records captured
through CSLI. Citing the “world of difference between the limited types of personal
information” typically collected by third parties for commercial purposes “and the exhaustive
chronicle of location information casually collected by wireless carriers today,” id. at 2219, the
Court examined two rationales undergirding the third-party doctrine to conclude that these
considerations did not support extending the doctrine to cover the CSLI obtained on less than a
probable cause showing under the circumstances. Id. at 2219–20; see also id. at 2220 (“Given
the unique nature of cell phone location information, the fact that the Government obtained the
information from a third party does not overcome Carpenter’s claim to Fourth Amendment
protection. The Government’s acquisition of the cell-site records was a search within the
meaning of the Fourth Amendment.”). As to the first rationale, the Court explained that the
holdings in Smith and Miller “did not rely solely on the act of sharing” but instead “considered
the ‘nature of the particular documents sought’ to determine whether ‘there is a legitimate
“expectation of privacy” concerning their contents.’” Id. at 2219 (quoting Miller, 425 U.S. at
442); see, e.g., Miller, 425 U.S. at 442 (holding that an individual did not have any legitimate
expectation of privacy in the contents of checks given to a bank in part because “[t]he checks
[were] not confidential communications but negotiable instruments to be used in commercial
transactions”). In contrast to the limited amount of personal information revealed by telephone
call logs, Smith, 442 U.S. at 742, banking transaction records, Miller, 425 U.S. at 442, or even
location information disclosing a person’s discrete journey on public thoroughfares, United
States v. Knotts, 460 U.S. 276, 281–83 (1983), the CSLI records at issue in Carpenter provided
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“a detailed chronicle of a person’s physical presence compiled every day, every moment, over
several years.” Carpenter, 138 S. Ct. at 2220. Thus, the comprehensive and intimate nature of
the CSLI records allows the government a much deeper intrusion into an individual’s privacy
than previous third-party doctrine cases.
As to the second rationale, the “sharing” in prior third-party cases rested on a “voluntary
exposure” that the Carpenter Court found to be absent in the context of CSLI records. See
Knotts, 460 U.S. at 281–82 (no reasonable expectation of privacy in public movements
“voluntarily conveyed to anyone who wanted to look”); Smith, 442 U.S. at 744 (same for
numerical information “voluntarily conveyed” to telephone companies); Miller, 425 U.S. at 442
(same for information “voluntarily conveyed” to banks and their employees). According to the
Court, the nature of the activity generating CSLI renders its exposure involuntary because cell
phone use is “indispensable to participation in a modern society,” and cell phones generate cell-
site records “without any affirmative action on the part of the user beyond powering up.”
Carpenter, 138 S. Ct. at 2220 (noting that “[v]irtually any activity on the phone generates CSLI,”
such that there is “no way to avoid leaving behind a trail of location data” unless an individual
disconnects the phone from the network). Users cannot voluntarily assume the risk of exposure
of the location information when its generation is essential, automatic, and inescapable. Thus,
the Carpenter Court concluded that the third-party doctrine did not apply to the government’s
acquisition of the CSLI records at issue.
Despite limiting the long-standing third-party doctrine, the Carpenter Court characterized
its holding as “a narrow one,” id. at 2220, where it “decide[d] no more than the case before [it],”
id. at 2220 n.4, further summarizing the scope of the ruling to be that “accessing seven days of
CSLI constitutes a Fourth Amendment search,” id. at 2217 n.3. The Carpenter Court
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acknowledged that this narrow holding left open a range of questions about the application of the
Fourth Amendment to CSLI, other types of data revealing location information, and “other
business records that might incidentally reveal location information.” Id. at 2220. Nevertheless,
the Carpenter Court expressly declined to decide “whether there is a limited period for which the
Government may obtain an individual’s historical CSLI free from Fourth Amendment scrutiny,
and if so, how long that period might be,” id. at 2217 n.3, and whether individuals have a
reasonable expectation of privacy in “real-time CSLI or ‘tower dumps’ (a download of
information on all the devices that connected to a particular cell site during a particular
interval),” id. at 2220, such that the government must seek a warrant based on probable cause
before obtaining such data. See also United States v. Green, 981 F.3d 945, 958 (11th Cir. 2020)
(noting question unresolved by Supreme Court of “whether acquiring [real-time tracking data]
constitutes a search”); United States v. Trader, 981 F.3d 961, 968 (11th Cir. 2020) (noting
Supreme Court’s unresolved questions of whether “the government [can] obtain less than seven
days’ worth of cell-site location information without a warrant,” whether “the government [can]
collect cell-site location information in real time or through ‘tower dumps’ not focused on a
single suspect” without a warrant, and whether “other [non-CSLI] business records that might
incidentally reveal location information” require a warrant (cleaned up)). Following Carpenter,
lower courts have grappled with these questions left unanswered by the Supreme Court, which
has yet to take up the issue again.
Notably, in sidestepping these questions to issue a “narrow” holding, the Carpenter Court
highlighted the context-specific nature of the Fourth Amendment’s application, even in cases
involving CSLI. In particular, the Carpenter Court took care to note that “if law enforcement is
confronted with an urgent situation, such fact-specific threats will likely justify the warrantless
17
collection of CSLI” and emphasized that its decision “does not call into doubt warrantless access
to CSLI in such circumstances.” Id. at 2223; see also id. (noting that, while Carpenter’s ruling
requires police to “get a warrant when collecting CSLI to assist in the mine-run criminal
investigation,” the decision “does not limit [law enforcement’s] ability to respond to an ongoing
emergency”). All told, the Carpenter Court’s limited holding embodied its caution that “no
single rubric definitively resolves which expectations of privacy are entitled to protection.” Id. at
2213–14.
2. Defendant Lacks a Reasonable Expectation of Privacy in the UGLI Data
Disclosed by Facebook
Defendant attempts to stretch Carpenter’s narrow holding to cover the disclosed
information at issue in this case, arguing that the government’s obtainment of non-content
information identifying Facebook and Instagram accounts broadcasting video content of a highly
public event from a particular place and during a specified time must be considered a Fourth
Amendment search under Carpenter’s logic. To leverage Carpenter’s holding to reach the non-
content information at issue, defendant, not the government, must establish Carpenter’s
applicability. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980) (“[Defendant], of course, bears the
burden of proving . . . that he had a legitimate expectation of privacy . . . .”); United States v.
Sheffield, 832 F.3d 296, 305 (D.C. Cir. 2016) (“[D]efendants always bear the burden of
establishing that the government violated a privacy interest that was protected by the Fourth
Amendment.”). At every turn, however, defendant fails to offer any factual support, and only
sparse briefing, establishing how the requested information presents the same privacy concerns
identified in Carpenter that rendered the third-party doctrine inapplicable to the CSLI records at
issue in that case. As the burden of establishing a reasonable expectation of privacy in the social
18
media account records requested by the government falls on defendant, these failures are fatal to
his motion.
First, defendant does not dispute, nor even address, that he voluntarily conveyed to
Facebook the information contained in Facebook’s disclosure to the FBI that he now seeks to
suppress. Although Facebook’s voluntary disclosure to the government did not provide personal
location data directly to the government, the disclosed User and Object IDs were derived from
location records Facebook collects from a variety of user-generated activity. Facebook’s Data
Policy informs users of how and when it collects information regarding account activity
generated by users of its services. For example, it “collect[s] the content and other information
[users] provide when [they] use [its] Services, including when [a user] sign[s] up for an account,
create[s] or share[s], and message[s] or communicate[s] with others,” which includes
“information in or about the content [the user] provide[s], such as the location of a photo or the
date a file was created.” Gov’t’s Opp’n, Ex. B, Facebook Data Policy at 2, ECF No. 192-1.
Additionally, “depending on the permissions” granted by the user, Facebook also collects
“information from or about the computers, phones, or other devices where [users] install or
access [its] Services,” such as “device locations, including specific geographic locations, such as
through GPS, Bluetooth, or WiFi signals” and “[c]onnection information such as . . . IP
address[es].” Id.; see also Social Media Warrant Aff. ¶¶ 84–89 (discussing similar policies for
Instagram).
Thus, unlike the CSLI data at issue in Carpenter, the only way that Facebook was able to
determine when and where a user engaged in account activity on January 6, 2021, is by virtue of
the user making an affirmative and voluntary choice to download the Facebook or Instagram
application onto an electronic device, create an account on the Facebook or Instagram platform,
19
and, critically, take no available steps to avoid disclosing his location, before purposefully
initiating the activity of live-streaming or uploading a video of a highly public event, in a manner
that occurs during the normal course of using Facebook as intended. Defendant has not
identified a single instance where Facebook logs information concerning his account activity of
posting any photo or video content on the Facebook platform without user action.
Not only has defendant failed to show the UGLI collected by Facebook is automatic and
inescapable, but he has also failed to show that Facebook usage is essential to modern life.
Defendant has not attempted to place into the record any evidence establishing that Facebook
“and the services [it] provide[s] are ‘such a pervasive and insistent part of daily life’ that [using]
[its social media platform] is indispensable to participation in a modern society.” Carpenter, 138
S. Ct. at 2220 (quoting Riley v. California, 573 U.S. 373, 385 (2014)).
Calling the location information embedded in and associated with, even incidentally,
user-generated and posted content “UGLI data,” is not just effective word play. The acronym
accurately reflects the inherent and critical difference between the CSLI records in Carpenter
and the account-usage information disclosed here: the information at issue here is affirmatively
and voluntarily generated by the user, not automatically and unavoidably created simply by
powering up a cell phone. The volitional aspect of the UGLI data at issue in this case “places the
conduct into the heartland of the third-party doctrine recognized in Smith and Miller.” Gov’t’s
Opp’n at 8; see United States v. Cox, 465 F. Supp. 3d 854, 857 (N.D. Ind. 2020) (“Decisions
post-Carpenter have noted the volitional aspect of IP address collection as a key point of
distinction from CSLI.”); United States v. Kidd, 394 F. Supp. 3d 357, 366 (S.D.N.Y. 2019)
(holding that in order for a defendant to meet his burden of showing a reasonable expectation of
privacy in application data linked to a defendant’s cell phone, he must establish that “his cell
20
phone [] passively generates [the app activity records] for [the app] to collect in a way similar to
CSLI”); Sanchez v. Los Angeles Dep’t of Transp., 39 F.4th 548, 559 (9th Cir. 2022)
(distinguishing location data collected by application where the user “affirmatively chose to
disclose location data” to the app provider each time he used its services, in particular because
the user agreed to the app’s privacy policies which expressly stated that the location data would
be collected by the provider and shared with government authorities); Trader, 981 F.3d at 968
(noting that every circuit to consider the question pre- and post-Carpenter has held that
subscriber information disclosed during ordinary use of the internet, including IP addresses, falls
within the third-party doctrine); id. (collecting cases); cf. Carpenter, 138 S. Ct. at 2220 (noting
that the voluntary-exposure rationale of the third-party doctrine did not “hold up when it comes
to CSLI”). Much like the disclosure of deposit slips in Miller, showing that a customer utilizing
the bank’s services deposited money into an account at a particular bank location on a particular
date, defendant, having “voluntarily conveyed” information regarding user-generated account
activity, i.e., a video of a highly public event either live-streamed from or uploaded to his
Facebook account during the ordinary course of using Facebook’s services, cannot assert a
reasonable expectation of privacy in Facebook’s disclosure of that information to the
government. Defendant has failed to show that Facebook’s disclosure does not fall within the
ambit of the third-party doctrine.
Defendant’s attempt to claim a reasonable expectation of privacy in the disclosed
account-usage information under the logic of Carpenter fails for another reason: he has not
established that the disclosed information rested on “a detailed chronicl[ing] of [defendant’s]
physical presence compiled every day, every moment, over several years.” Palmieri v. United
States, 896 F.3d 579, 588 & n.7 (D.C. Cir. 2018) (first alteration in original) (quoting Carpenter,
21
138 S. Ct. at 2220) (noting that Carpenter distinguished Smith and Miller on this basis). Instead,
the “nature of the particular [information] sought” by the government showcases the limited
capability of the UGLI data to reveal the type of intimate personal information that the
Carpenter Court identified as implicating serious privacy concerns. Carpenter, 138 S. Ct. at
2219 (quoting Miller, 425 U.S. at 442). The government did not ask for, nor did Facebook
voluntarily disclose, the contents of any confidential messages, posts, or other communications
posted by defendant. See Miller, 425 U.S. at 442 (noting that a defendant had a diminished
expectation of privacy in records that were not confidential communications). The government
also did not ask for, nor did Facebook voluntarily disclose, information that had the potential to
reveal an account user’s movements “beyond public thoroughfares,” such as “into private
residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
Carpenter, 138 S. Ct. at 2218. 1 Finally, the government did not ask for, nor did Facebook
voluntarily disclose, a record of defendant’s movements over the course of a year, a month, a
week, or even a day. Instead, the requested information—user identification numbers associated
with accounts that broadcasted a video of a highly public event live-streamed or uploaded while
the user was in the U.S. Capitol building during a discrete time period spanning approximately
4.5 hours—was narrowly circumscribed to reveal an account user’s presence in a government
building (1) where ordinarily “[o]nly authorized people with appropriate identification are
allowed access,” Social Media Warrant Aff. ¶ 9, (2) where serious criminal conduct occurred, (3)
during an unprecedented national emergency, with concomitant national security implications,
1
Indeed, the Carpenter Court’s reasoning evinced a heightened sensitivity for location information that
“provides an intimate window into a person’s life,” revealing “‘the privacies of life.’” Carpenter, 138 S. Ct. at 2217
(quoting Riley, 573 U.S. at 403). In contrast, the government’s request and Facebook’s disclosure does not carry
even the smallest of risks of associating user accounts with locations or activities that expose such highly private,
personal, or confidential communications, choices, or associations of the user.
22
(4) while the user was surrounded by a mob numbering in the hundreds (or even thousands) and
was engaging in broadcasting highly public activity through a social media platform. 2 Nothing
about the circumstances in which these account users found themselves even hints at an
expectation of privacy in their physical location. Nor would any such expectation be one that
society is prepared to accept as reasonable, especially considering the blatant criminal conduct
occurring within the usually secured halls of the Capitol building during the constitutional ritual
of confirming the results of a presidential election. 3 See Brennan, 2022 WL 3008030, at *8
(“‘[R]elatively short-term monitoring of a person’s movements’ in public places ‘accords with
expectations of privacy that our society has recognized as reasonable.’” (alteration in original)
(quoting Jones, 565 U.S. at 430 (Alito, J., concurring in judgment))); see also Matter of Search
of Info. Associated with Cellular Tel. Towers Providing Serv. to [Redacted] Stored at Premises
Controlled by Verizon Wireless, No. 21-SC-59 (BAH), 2022 WL 2922193, at *5 (D.D.C. July
25, 2022) (“[W]hether a probable cause warrant is required under the Fourth Amendment for the
government to obtain ‘tower dumps,’ for short time periods in circumscribed locations where
serious criminal conduct occurred, is murky at best, even though this investigative technique
may be critical for prompt identification of a perpetrator.” (citation omitted)); United States v.
Walker, No. 2:18-CR-37-FL-1, 2020 WL 4065980, at *8 (E.D.N.C. July 20, 2020) (finding “no
Fourth Amendment violation when officers obtained the orders” for CSLI, pursuant to SCA §
2
Not only would any lawful entrants to the restricted areas of the Capitol building be required to reveal their
identification to the government prior to entering, but the government continuously monitors the halls of the Capitol
through CCTV cameras. See, e.g., Social Media Warrant Aff. ¶ 45 (noting that U.S. Capitol CCTV footage captured
an individual associated with one of the targeted Facebook accounts entering the Capitol building and walking
through the crowds). Nothing is private about entry into the Capitol.
3
In fact, in the immediate aftermath of the events of January 6, 2021, the FBI set up a “Most Wanted”
webpage devoted solely to “identifying individuals who made unlawful entry into the U.S. Capitol building and
committed various other alleged criminal violations,” posting numerous pictures and videos of individuals on
restricted grounds surrounding and inside the Capitol Building. Most Wanted: U.S. Capitol Violence, FED. BUREAU
INVESTIGATIONS, https://www.fbi.gov/wanted/capitol-violence (last visited Aug. 21, 2022).
23
2703(d), for four 60- to 90-minute time periods over the course of two days, and “no basis for
attaching a Fourth Amendment interest to tower dump CLSI [sic]” because such dumps only
“capture CLSI [sic] for a particular place at a limited time” and therefore “the privacy concerns
underpinning the court’s holding in Carpenter do not come into play” (emphasis in original)).
Other aspects of the requested information confirm defendant’s reduced expectation of
privacy in the UGLI data that Facebook voluntarily disclosed to the government. Notably,
Facebook’s Data Policy warns users that it will “access, preserve and share information when [it]
has a good faith belief it is necessary to: detect, prevent and address fraud and other illegal
activity; to protect [Facebook], [the user] and others, including as part of investigations; or to
prevent death or imminent bodily harm.” Facebook Data Policy at 6–7. By agreeing to
Facebook’s Data Policy, defendant voluntarily “assumed the risk” that the company’s records
“would be divulged to police” should Facebook have a good faith belief that such disclosure is
necessary to detect or address illegal activity. Smith, 442 U.S. at 745. Now finding himself in
that exact situation, defendant never attempts to address the impact his voluntary agreement has
on his ability to establish the serious privacy concerns raised in Carpenter. Moreover, defendant
has not even attempted to argue or submit evidence demonstrating that Facebook’s collection of
UGLI for defendant’s account comes to close to creating an “exhaustive chronicle of location
information” that results in “near perfect surveillance” similar to the CSLI records held by
wireless carriers. Carpenter, 138 S. Ct. at 2218–19; see also Kidd, 394 F. Supp. 3d at 366
(holding that a defendant must establish that a cell phone “consistently conveys granular location
information” for the application to collect in order to demonstrate a reasonable expectation of
privacy in UGLI data associated with a cell phone). Each of these omissions create gaping holes
24
in defendant’s attempt to extend Carpenter’s coverage to the UGLI-derived account-usage
information disclosed to the government in this case.
Defendant has fallen far short of demonstrating that application of the third-party doctrine
to user identification information derived from UGLI data for accounts in which the users live-
streamed or uploaded videos of a highly public event is inconsistent with this doctrine’s
underlying rationales. As the burden of establishing a reasonable expectation of privacy rests
with the defendant, under the existing record, defendant has failed to establish any reasonable
expectation of privacy in the disclosed account-usage records. Accordingly, defendant’s failure
to establish any Fourth Amendment interest in the non-content user identification information
derived from UGLI data that Facebook voluntarily disclosed to the FBI means that no
suppression of the contents of defendant’s social media accounts is warranted on this basis. 4
4
Given this holding the alternative grounds proffered by the government to deny suppression of the thirty-
two exhibits, Gov’t’s Opp’n at 9–11, 15–17, need not be addressed. Nonetheless, the government’s heavy reliance
on one of those alternative grounds warrants brief comment. Specifically, the government argues that, under the
good-faith exception, the FBI’s objectively reasonable reliance on 18 U.S.C. § 2702(c)(4)’s emergency disclosure
provision renders the exclusionary rule inappropriate in this case. Id. at 9; see Illinois v. Krull, 480 U.S. 340, 349–
50 (1987) (holding that the exclusionary rule should not apply to evidence “obtained by an officer acting in
objectively reasonable reliance on a statute,” even if the statute is later found to be unconstitutional); Davis v. United
States, 564 U.S. 229, 241 (2011) (“[T]he harsh sanction of exclusion ‘should not be applied to deter objectively
reasonable law enforcement activity.’” (quoting United States v. Leon, 468 U.S. 897, 919 (1984))). To support this
alternative ground, the government’s record establishing that Facebook reasonably had a good-faith belief that an
emergency existed compelling its January 22, 2021 disclosure is sparse. The FBI agent’s declaration explaining the
emergency circumstances prompting the initial request to Facebook contains no factual support establishing any
objective reason to believe that sixteen days after the January 6, 2021 attack, either the FBI or Facebook reasonably
believed that “law enforcement [was] confronted with an urgent situation,” i.e., the need to protect congressional
officers, law enforcement in the Capitol, or other individuals from threats of “imminent harm” from rioters who
participated in the January 6 attack. Carpenter, 138 S. Ct. at 2223; see generally Hess Decl. Nor does the
government provide any declaration from Facebook stating fact-specific reasons for why the emergency outlined in
the January 6, 2021 request was considered to be ongoing through January 22, 2021. The record evidence shows
that, on January 22, 2021, the FBI did not feel an urgent need to take action to identify the perpetrators of the
January 6 attack based on Facebook’s disclosure since the FBI waited until February 7, 2021, sixteen days later, to
search publicly available information on the Facebook accounts associated with the disclosed User IDs and to
request that Facebook preserve the contents of the identified accounts, Social Media Warrant Aff. ¶¶ 43, 47, and
waited until March 3, 2021, forty days later, to request a warrant to search the identified accounts. These time
periods raise serious questions of whether, after the dispersal of the mob that attacked the Capitol building on
January 6, 2021, by the end of that day and the increased security precautions then put in place through the
Inauguration, the urgent need for the information initially requested on January 6 continued until January 22, 2021,
to permit the FBI’s reliance on the emergency disclosure provision in § 2702(c)(4).
25
B. Probable Cause Supports the Social Media Warrant
Having concluded that Facebook’s voluntary disclosures of non-content information to
the FBI under the circumstances did not violate the Fourth Amendment, defendant’s next Fourth
Amendment challenge must be addressed. Based on his legitimate expectation of privacy in the
content of his social media accounts that were designated “non-public” at the time of the Social
Media Warrant, defendant contends that the government violated his Fourth Amendment rights
by obtaining such content because the Social Media Warrant lacked probable cause. Def.’s Mot.
at 4–5; see also Facebook Return (Sealed) at 6–11, ECF No. 223 (showing that defendant’s
Facebook account settings at the time of the search restricted access to his posts to himself or to
Facebook Friends that he accepted). As support for this contention, defendant points to a line in
the affidavit filed in support of the Social Media Warrant, stating that the FBI asked Facebook to
identify “users that broadcasted live videos which may have been streamed and/or uploaded to
Facebook from physically within the building of the United States Capitol during the time on
January 6, 2021 in which the mob had stormed and occupied the Capitol building.” Id. at 2
(emphasis in original) (quoting Social Media Warrant Aff. ¶ 40). Highlighting the use of the
word “may,” defendant reasons that, “at most, the Affidavit only establishes a possibility that the
Facebook and Instagram accounts at issue might contain evidence of criminal activity.” Id. at 3.
The government posits that defendant’s reasonable expectation of privacy in the non-
public content of his social media accounts is “open to debate,” Gov’t’s Opp’n at 12 n.2, but, in
any event, is an issue that need not be resolved because the government obtained a search
warrant before accessing the contents of his social media accounts, id. Obtaining a warrant was
a prudent approach given the weight of persuasive authority holding that non-public content held
on social media accounts is protected under the Fourth Amendment. See United States v.
Westley, No. 3:17-cr-171, 2018 WL 3448161, at *6 (D. Conn. July 17, 2018) (“Because of the
26
nature of a Facebook account, which allows users to post information privately, share
information with select groups of ‘friends,’ or post information publicly, courts have held that
whether the Fourth Amendment applies to a user’s Facebook content ‘depends, inter alia, on the
user’s privacy settings.’” (quoting United States v. Meregildo, 883 F. Supp. 2d 523, 525
(S.D.N.Y. 2012))); Meregildo, 883 F. Supp. 2d at 525 (“When a social media user disseminates
his postings and information to the public, they are not protected by the Fourth Amendment.
However, postings using more secure privacy settings reflect the user’s intent to preserve
information as private and may be constitutionally protected.” (citation omitted)); United States
v. Chavez, 423 F. Supp. 3d 194, 202–04 (W.D.N.C. 2019) (holding that a Facebook user has a
reasonable expectation of privacy in content which he has intentionally excluded from public
access). But see United States v. Weber, No. CR 21-28-M-DLC, 2022 WL 1222896, at *5 (D.
Mont. Apr. 22, 2022) (holding that a defendant lacked a reasonable expectation of privacy in the
content of his social media accounts because he did not introduce any evidence regarding the
privacy settings for his account and the terms of service imposed by the social media platform
“likely rendered any subjective expectation of privacy objectively unreasonable” as they
“informed him that Instagram was monitoring his content and may provide such content to law
enforcement in certain situations”). Examination of the Social Media Warrant shows that the
Fourth Amendment’s probable cause requirement for the searches authorized is amply satisfied.
A showing of probable cause “is not a high bar,” District of Columbia v. Wesby, 138 S.
Ct. 577, 586 (2018) (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)), and, in the
context of a search warrant, requires only a “fair probability that . . . evidence of a crime will be
found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238 (1983). To evaluate whether
this standard is met, courts focus on whether the warrant application provides “a ‘substantial
27
basis’ for concluding that ‘a search would uncover evidence of wrongdoing’” by
“demonstrat[ing] cause to believe that ‘evidence is likely to be found at the place to be
searched’” and that “‘a nexus [exists] . . . between the item to be seized and criminal behavior.’”
United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017) (first alteration and omission in
original) (first quoting Gates, 462 U.S. at 236; then quoting Groh v. Ramirez, 540 U.S. 551, 568
(2004); and then quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967)). The
task of a district court reviewing a magistrate’s determination that a warrant is supported by
probable cause “is simply to ensure that the magistrate had a ‘substantial basis for . . .
conclud[ing]’ that probable cause existed.” Gates, 462 U.S. at 238–39 (alteration and omission
in original) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
The Social Media Warrant Affidavit provided ample reason to believe that evidence of
criminal activity occurring at the U.S. Capitol on January 6, 2021 would be found in the
identified social media accounts. The affidavit sets out a clear nexus between the content held in
the social media accounts targeted by the search warrant and the multitude of criminal offenses
committed within and around the Capitol Building. Critically, the identified social media
accounts were ones found to have engaged in broadcasting video content recorded or uploaded
while the user was within the Capitol Building during the time of the riot. In attacking this
nexus, defendant focuses on the government’s use of the word “may.” This is far too thin a reed
to support suppression, given the full context and the known capabilities of Facebook, including
those detailed in the warrant. The affidavit provided ample grounds to believe that Facebook
reliably ascertained which accounts posted content while the user was physically located in the
U.S. Capitol. For example, as discussed earlier, Facebook generates IP logs for a given
Facebook user, which detail “the date and time of” any account activity engaged in by a
28
Facebook user—like posting a video—as well as “the user ID and IP address associated with the
action.” Social Media Warrant Aff. ¶ 64; see also Facebook Data Policy at 2 (noting that
Facebook collects “[c]onnection information such as . . . IP address” from “the computers,
phones, or other devices where [users] install or access [its] Services”). By determining the
physical location associated with the logged IP address, Facebook can easily determine the time
and geographic location at which the account activity took place. Facebook also collects
metadata from photos and videos uploaded by users, which “can include information . . . about
the content [a user] provide[s], such as the location of a photo or the date a file was created.”
Facebook Data Policy at 2. These facts support the reasonable inference that Facebook has the
technological capacity to confirm the particular location and time at which users upload videos.
Additionally, the Social Media Warrant Affidavit described law enforcement’s successful efforts
to corroborate Facebook’s identification of relevant accounts that posted videos from within the
Capitol on January 6. Social Media Warrant Aff. ¶¶ 45–46 (noting that “[p]rior FBI
investigation identified individuals associated with certain accounts sought in [the] warrant and
corroborated their involvement in the offenses under investigation,” including their use of
Facebook to post photos and videos while unlawfully remaining in the Capitol).
Based on Facebook’s identifications, law enforcement had a solid basis and good reason
to believe that the identified social media accounts would contain incriminating information
relevant to the crimes committed during the attack on the Capitol on January 6, especially as
news footage of the attack showed rioters taking photos and videos of themselves and others
breaking into the Capitol, damaging and stealing property from within the building, and
attacking law enforcement as the mob impeded the certification of the Electoral College vote.
Id. ¶¶ 34–39. In sum, the issuing judge had a reasonable basis to conclude that evidence of
29
criminal activity occurring during January 6, 2021, would be found in the social media accounts
identified by Facebook. 5
IV. CONCLUSION
For the reasons stated above, as supplemented by the Court’s oral ruling on July 15,
2022, the defendant’s Motion to Suppress Data Recovered from Facebook and Instagram
Accounts and Derivative Evidence and Information, ECF No. 182, is DENIED.
SO ORDERED.
Date: August 22, 2022
__________________________
BERYL A. HOWELL
Chief Judge
5
In the alternative, even if the Social Media Warrant lacked probable cause, under the good-faith exception,
exclusion of the seized evidence from non-public portions of defendant’s social media accounts is not warranted.
Under the logic of the good-faith exception, “‘evidence seized in reasonable, good-faith reliance on a search
warrant’ need not be excluded, even if the warrant turns out to have been unsupported by probable cause,” Griffith,
867 F.3d at 1278 (quoting Leon, 468 U.S. at 905), so long as the warrant is not “based on an affidavit so lacking in
indicia of probable cause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at 923
(cleaned up). Here, the Social Media Warrant Affidavit is not so lacking in indicia of probable cause as to warrant
suppression. As detailed in the text, this affidavit articulated specific facts detailing the nature of criminal activity
and describing the connection between the identified accounts and the unlawful conduct occurring on January 6,
thereby providing a reasonable basis for believing that the social media accounts would hold evidence of the
criminal activity under investigation. Social Media Warrant Aff. at 7–15. Additionally, the affidavit provided
factual support for the government’s reasonable reliance on Facebook accurately identifying accounts that
broadcasted content from within the Capitol during the January 6 attack, including additional corroborating evidence
not provided by Facebook. Id. ¶¶ 45–46, 54, 64–65, 72. Probable cause does not require knowledge to a near-
certainty, and here the government provided more than sufficient support to believe that Facebook, the owner of the
social media platforms which hosted the content at issue, was capable of determining the time and location account
activity took place on its site.
30