Concerning the Constitutionality of the Government’s Request for Historical “Cell-Site Location Information” Under Section 2703(d) of the Stored Communications Act
This case presents the complex, but important, issue of whether the Fourth Amendment requires that a judge deny a Government application for historic cell site location information records under the Stored Communications Act, 18 U.S.C. § 2703(d). The Government frequently requests such records, and in the past courts have issued “(d) orders” requiring cell phone service providers to disclose them. However, in light of recent cases, some judges question whether such orders violate the Fourth Amendment rights of the cell phone owners. In this case, three of the Government’s applications were denied, and the Magistrate Judge issued an opinion stating that it would be unconstitutional to issue the orders without a warrant. The District Court upheld the decision when the Government objected, and now the Court of Appeals for the Fifth Circuit is set to rule on the issue. The Government relies primarily on the argument that cell site data is not protected under the third party doctrine, but that argument has been severely undermined by Justice Sotomayor’s recent concurrence in United States v. Jones.
The Magistrate Judge Held That Ordering Disclosure of Historical Cell Site Records Without a Warrant Would Violate the Fourth Amendment Under Karo and Maynard
In response to recent developments in Fourth Amendment law, the Magistrate Judge denied three separate applications for historic cell-site records under the SCA and called for further briefing by the Government on the constitutionality of the requested order. The Judge issued an opinion containing extensive judicially noticed “findings of fact” (fifty paragraphs) related to cell phone technology and tracking methods. The Judge concluded that “[t]he refinements in location-based technology detailed in the findings of fact have decisive Fourth Amendment consequences.” In re US for Historical Cell-Site Data, 747 F. Supp. 2d 827, 836 (S.D.T.X. 2010). Specifically, the Judge found that “[l]ike the beeper signal from the residence in Karo, cell site information permits the government ‘to determine by means of an electronic device . . . whether a particular article – or person, for that matter – is in an individual’s home at a particular time.’” Id. (citing United States v. Karo, 468 U.S. 705, 716 (1984)). The judge also found the D.C. Circuit’s “treatment of month-long GPS surveillance” in United States v. Maynard to be “instructive.” Id. at 838.
The Judge also held that “[t]he fact that the records are presently in the hands of a third party might be dispositive if they had been ‘voluntarily conveyed’ to the provider by the customer, but … that is not true of cell site tracking data.” Id. at 839-40. The Judge noted that the traditional “third party doctrine” rule laid down in United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), has been considered and rejected in the context of cell phone location information by the Sixth Circuit and Third Circuit. Id. at 843-44. The circuit courts found that such location information was not “voluntarily conveyed” by the default functions of the phone when it was turned on, or even when a call was placed or received. Id. The Judge emphasized that “[t]he assumption of risk theory espoused by Miller and Smith necessarily entails a knowing or voluntary act of disclosure,” which is not present here. Id. at 844. This is especially true where technology has dramatically improved over the last ten years, and customers knowledge has not kept pace. Id. Furthermore, during that same time period Congress enacted legislation specifically to limit “the carrier’s use or disclosure of a cell phone user’s location information.” Id. at 841 (discussing the Wireless Communication and Public Safety Act of 1999).
The Judge responded to the Government’s suggestion that Fourth Amendment concerns “are best addressed at a suppression hearing, after the search has taken place.” Id. at 840. The Judge noted that, “[i]f asked to issue an order that in our considered view violates the constitution, our sworn duty is to deny that application.” Id. The Judge also pointed out that “[m]urky areas of law like ECPA remain murky decades after passage for two principal reasons – a dearth of reported district court decisions to generate appellate review, and a regime of sealing and gag orders to conceal court rulings from the general public and affected parties.” Id.
5th Circuit Decision in CSLI
In July 2013, the U.S. Court of Appeals for the Fifth Circuit reversed the lower court decision and ruled that individuals do not have a constitutionally protected interest in location records generated by their cell phones. The court upheld the Government’s power under the Secure Communications Act to compel cell phone service providers to disclose location data to law enforcement pursuant to a § 2703(d) court order, finding that under the third-party doctrine individuals do not have an expectation of privacy in that data. “Because a cell phone user makes a choice to get a phone, to select a particular service provider, and to make a call, and because he knows that the call conveys cell site information, the provider retains this information, and the provider will turn it over to the police if they have a court order, he voluntarily conveys his cell site data each time he makes a call.” In re US, 724 F.3d 600, 614 (5th Cir. 2013). Regarding the preference of some cellphone users to keep such information private, the court found that “the recourse for these desires is in the market or the political process . . .” Id. at 615. However, the court declined to consider anything broader than that narrow question: “We do not address orders requesting data from all phones that use a tower during a particular interval, orders requesting cell site information for the recipient of a call from the cell phone specified in the order, or orders requesting location information for the duration of the calls or when the phone is idle . . .” Id.
This case represents one of the first major tests in Fourth Amendment doctrine post-Jones. Specifically, this case raises many of the same issues that Justice Sotomayor identified in her concurring opinion in Jones, in which she called for a reconsideration of the third party doctrine. EPIC has an interest in promoting the development of robust Fourth Amendment privacy protections in light of Jones.
EPIC has an interest in promoting privacy in digital spaces by upholding robust Fourth Amendment protections. Location privacy is an increasingly important issue in Fourth Amendment law as more devices store location data that can later be recovered, intercepted, or otherwise obtained by law enforcement or private parties. EPIC recently filed a “Friend of the Court” brief in State v. Earls, a New Jersey Supreme Court case addressing an individual’s reasonable expectation of privacy in the location of their cell phone. EPIC also filed a “Friend of the Court” brief in US v. Jones, a Supreme Court case involving a Fourth Amendment challenge to the government’s unwarranted use of GPS tracking technology during a criminal investigation.
The Government appealed the Magistrate Judge’s opinion to the District Court for the Southern District of Texas. The District Court Judge overruled the Government’s objections and upheld the Magistrate Judge’s ruling. See In re US for Historical Cell Site Data, No. 11-mc-00223 (S.D.T.X. Nov. 11, 2011). Then the Government appealed the District Judge’s order (and the Magistrate Judge’s Opinion) to the US Court of Appeals for the Fifth Circuit. The Government submitted its opening brief in that case on February 15, 2012. EPIC filed motions to appear as amicus and for time to participate in oral argument on February 17, 2012. The Court granted EPIC’s motion to file an amicus brief on February 20, 2012. Professor Orin Kerr filed an amicus curiae brief in support of the Government on February 22, 2012, arguing that the Magistrate Judge’s opinion should be vacated for ruling on a non-justiciable issue. Various amici (Electronic Frontier Foundation, ACLU, and ACLU of Texas) filed a motion for leave to file a combined amicus curiae brief of 30 pages on February 28, 2012.
Court of Appeals for the Fifth Circuit
- Oral Argument Audio (WMA)
- Amicus Curiae Brief of Electronic Privacy Information Center (EPIC), In re US for Hist. Cell Site Data, No. 11-20884 (5th Cir. Mar. 16, 2012)
- Amicus Curiae Brief of the American Civil Liberties Union Foundation, ACLU Texas, Electronic Frontier Foundation, the Center for Democracy and Technology, and the National Association of Criminal Defense Lawyers, In re US for Hist. Cell Site Data, No. 11-20884 (5th Cir. Mar. 16, 2012)
- Amicus Curiae Brief of Professor Susan Freiwald, In re US for Hist. Cell Site Data, No. 11-20884 (5th Cir. Mar. 16, 2012)
- Amicus Curiae Brief of Professor Orin Kerr, In re US for Hist. Cell Site Data, No. 11-20884 (5th Cir. Feb. 22, 2012)
- Opening Brief of USA, In re US for Hist. Cell Site Data, No. 11-20884 (5th Cir. Feb. 15, 2012)
United States District Court for the Southern District of Texas
- Application of USA, In re US for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. Oct. 6, 2010) (No. 10-mj-990)
- Application of USA, In re US for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. Oct. 12, 2010) (No. 10-mj-998)
- Application of USA, In re US for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. Oct. 5, 2010) (No. 10-mj-981)
- Opinion of US Magistrate Judge Stephen Wm Smith, In re US for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010)
- Brief of Amicus EFF, ACLU, ACLU-TX in Opposition to Government’s Request for Review, In re: Application of the United States of America for Historic Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. Jan. 14, 2011) (No. 10-mj-00981)
- Brief of Professor Susan Freiwald in Opposition to Government’s Request for Review, In re: Application of the United States of America for Historic Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. Jan. 14, 2011) (No. 10-mj-00981)
- Judge Lynn N. Hughes, Order Overruling Government’s Objections to the Magistrate Judge’s Decision, In re: Application of the United States of America for Historic Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. Nov. 11, 2010) (No. 10-mj-00981)
- United States v. Jones, 132 S. Ct. 954 (2012)
- In re Application of U.S. for an Order Directing a Provider of Elec. Comm’n Serv. to Disclose Records to Gov’t, 620 F.3d 304 (3d Cir. 2010)
- In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113 (E.D.N.Y. 2011)
- In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., No. 10-2188-SKG, 2011 WL 3423370 (D. Md. Aug. 3, 2011)
- In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Info., No. 10-MC-0897 JO, 2010 WL 5437209 (E.D.N.Y. Dec. 23, 2010)
- In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747 (S.D. Tex. 2005).
- Smith v. Maryland, 442 U.S. 735 (1979)
- US v. Miller, 425 U.S. 435 (1976)
Law Review Articles and Books
- Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact, 26 Berkeley Tech. L.J. (forthcoming Mar. 2012).
- Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 Md. L. Rev. 677 (2011)
- Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. & Mary L. Rev. 2105 (2009).
- Whitfield Diffie & Susan Landau, Communications Surveillance: Privacy and Security at Risk, 52 Comm. of the ACM 11 (2009).
- Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008).
- R. McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409 (2007).
- Jerry Kang & Dana Cuff, Pervasive Computing: Embedding the Public Sphere, 62 Wash. & Lee L. Rev. 93 (2005).
- Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 Geo. Wash. L. Rev. 1557 (2004).
- Julie E. Cohen, Examined Lives: Information Privacy and the Subject as Object, 52 Stan. L. Rev. 1373 (2000).
- Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law and Philosophy 559 (1998).