By: Cynthia Anderson
From cell phone searches to databases filled with internet-based communications, citizens’ privacy rights have been a hot topic in the United States recently. This has led to significant discussion about the government’s ability to obtain information without a warrant for use in ongoing criminal investigations. Recently, Supreme Court decisions in Riley v. California and United States v. Wurie, have largely been viewed as a win for privacy advocates. The Court in both cases held that police cannot conduct a warrantless search incident to arrest to obtain information contained on a cellphone. A lawyer in the Riley case predicts that Riley and Wurie will act as a catalyst for other potential Fourth Amendment issues relating to technology to make their way to the Supreme Court. I agree, and historic cell site location information (CSLI) should be one of the first topics to find its way to there. Obtained under the “specific and articulable facts” standard of 18 U.S.C. section 2703(d), historic CSLI has received increasing amounts of attention for allowing data to be collected for less than the probable cause standard.
Much of the case law related to historic CSLI has remained at the District Court level. Challenges have been raised as to both the applicability of the statute to historic CSLI and the constitutionality of the statute under the Fourth Amendment. The arguments against finding that historic CSLI can be obtained under section 2703 are fairly weak. They largely center on an attempt to classify a cell phone as a tracking device under section 3117(b), as in In re Application Authorizing Disclosure of Historic Cell Site. However, most opinions seem to recognize that this argument is flawed and go on to provide a constitutional analysis. It seems likely that any future Supreme Court decision would follow suit and resolve the debate on a constitutional rather than statutory basis.
Opinions that have concluded that obtaining historic CSLI is a search under the Fourth Amendment have typically done so based on language in newer Supreme Court cases such as United States v. Jones. Most recently, the Eleventh Circuit held that section 2703(d) as it applies to historical CSLI is unconstitutional because it violates “the subscriber’s reasonable expectation of privacy.” The opinion hinges its support on the Supreme Court cases Jones and Katz v. United States. In Jones, the government installed a GPS tracking device on the defendant’s car after its search warrant had already expired, and in a location not covered by the warrant. The opinion held that the Fourth Amendment had been violated because the government trespassed on the defendant’s private property when it installed the tracking device. Although the search was found to be unconstitutional without regard to the defendant’s reasonable expectation of privacy, the opinion did acknowledge that the Katz test would still apply in situations where a physical trespass had not occurred. The Eleventh Circuit concludes that historic CSLI must be obtained through a warrant based on two portions of the Jones opinion. First, an admission by the majority that the Katz expectation of privacy test still applies; and second, the concurring opinions’ assertions that GPS location tracking violates a reasonable expectation of privacy because it can show a person’s “visit to a gynecologist, a psychiatrist, a bookie, or a priest[.]” It further uses prior analysis by the Third Circuit to conclude that older Supreme Court decisions about citizens’ reasonable expectations of privacy, such as United States v. Miller and Smith v. Maryland, do not apply. Smith and Miller held that individuals have no reasonable expectation of privacy in information voluntarily given to a third party, such as phone numbers dialed or information facilitating bank transactions. However, the Third and Eleventh Circuits distinguished historic CSLI from other information processed by third party companies by asserting that consumers are unlikely to be “aware that their cell phone providers collect and store historical location information.” Thus, if consumers are unaware that they have shared the information, they cannot have done so voluntarily.
Interestingly, cases that do not find that historic CSLI violates a reasonable expectation of privacy tend to simply emphasize that the information is obtained from a third party. The Fifth Circuit, for instance, held that the “specific and articulate facts” standard does not violate the Fourth amendment as used to obtain historic CSLI. In doing so, it found that “cell site information is clearly a business record” under Smith and Miller, and it may therefore be obtained using a lower standard than that required for a warrant. It further rejects that cell phone users do not understand that service providers use and retain information that can identify their location. In essence, the split created by the Fifth and Eleventh Circuits is based entirely on different applications of the same case law.
Although many privacy advocates are likely to hail the Eleventh Circuit opinion, there are a surprising number of articles that support the conclusion that historic CSLI does not require a warrant under existing Supreme Court precedent. Arguments as to what the Fourth Amendment should protect aside, I agree that current jurisprudence does not support the conclusion that historic CSLI constitutes a search under the Fourth Amendment. First, the data is almost unarguably derived from information voluntarily given to a third party under Smith and Miller. The assertion that consumers do not realize the information is gathered ignores not only the technological know-how that is prevalent in most generations, but the large number of procedural crime shows that reference its use in criminal investigations. Second, CSLI does not provide pinpoint location information. The Third and Eleventh Circuits seem to accept that when CSLI locates a person to within 100-meters, it tells law enforcement exactly what building a person was in. One hundred meters is nearly the length of a football field. For the majority of people in the country who largely live in towns or cities, that amount of detail only shows what neighborhood a person was in. Finally, despite the recent Supreme Court dicta expressing concern about GPS data violating privacy by showing things like whether a person goes to strip clubs or attends church, this kind of information is already available to the government under the lower subpoena standard by obtaining credit card and bank transaction records. Banking transactions certainly provide a more complete picture of a person’s activities and preferences than what scattered information could be gathered by pulling historic location information generated at the times that they made or received phone calls.
Even though Supreme Court precedent does not directly support the Eleventh Circuit’s analysis, it seems likely that the Supreme Court will also find a way to conclude that section 2703 is unconstitutional as applied to historic CSLI. The Court has recently trended toward increasing privacy protections when it comes to technology, as evidenced by Riley, Wurie, and the concurring opinions in Jones. No matter the ultimate conclusion, given the far-reaching implications for criminal investigations, the standard required for investigators to receive historic cell site location information needs to be addressed by the Supreme Court in the near future.