Internet Surfing Surveillance: An Evolving Balancing Act

Bette Midler's mega hit, and 1991 Grammy "Song of the Year" told of a God that saw all "from a distance."¹ Arguably, the recent revelations about the NSA's metadata surveillance program² may indicate that the federal government's surveillance radius is a smaller, but, perhaps, terrestrial attempt to meet a comparable level of scrutiny? The program has attracted widespread criticism, perhaps because its deployment was done without reference to "individualized suspicion."³ Nevertheless, the criminal use of the Internet is ever-expanding with an increasing stealth capacity, so it is no wonder that it is a commonly held belief that a robust, technologically advanced, and ready law enforcement capability is required to successfully counter future challenges by criminal organizations as well as sophisticated lone wolves. Law enforcement's capabilities must, of course, be balanced against constitutional parameters of the right to privacy.⁴ Another chapter in this continually evolving balancing act is the judiciary's response to law enforcement's use of Internet surveillance, and the applicable standard of individualized suspicion, which will be discussed in this article.

IP Adresses

An IP (Internet Protocol) address is a number assigned to each device that is connected to the Internet. Although most devices do not have their own, permanent ("static") addresses, in general an IP address for a device connected to the Internet is unique in the sense that no two devices have the same IP address at the same time.⁵ As one court has stated: "[T]here undoubtedly exists the possibility of mischief and mistake with IP addresses…. [P]roxy servers can be used to mask IP addresses, and [ ]knowledgeable users can 'spoof' the IP addresses of others."⁶ Moreover, wireless networks may be secured or unsecured. An unsecured network permits any user to connect to it through various access points and those users would then be operating under a veil from the particular IP address of the wireless network, making it more difficult to identify the true user and determine his or her Internet surfing history.⁷ This is but the tip of the challenges facing law enforcement in identifying criminal use of the Internet. Specific data about a suspect's Internet surfing has been critical evidence in various prosecutions across the country. Accordingly, issues concerning the specific manner and type of judicial authorization required for law enforcement to monitor a suspect's IP usage, including email addresses have been resonating nationwide.