DOJ Leans On Old Laws And Even Older Cases To Argue Against Privacy Expectations In Cell Site Location Data
from the it's-1979-all-over-again! dept
Last month, AT&T entered an amicus brief in the US v. Quartavious Davis case, arguing that law enforcement shouldn’t be allowed warrantless access to cell site location data. AT&T’s entry into the privacy battle comes after a lengthy silence during which it was very obliging of government requests for customers’ data. The crux of its argument was this:
Nothing in those [prior court] decisions contemplated, much less required, a legal regime that forces individuals to choose between maintaining their privacy and participating in the emerging social, political, and economic world facilitated by the use of today’s mobile devices or other location-based services.”
That’s where we are, as far as private citizens are concerned. The government, through its thorough exploitation of the Third Party Doctrine, has basically forced the public to choose between allowing warrantless access to tons of their data (and metadata) or living some sort of off-the-grid lifestyle that doesn’t involve generating “business records” via cell phone, internet service, etc.
Some judges and justices have noted that today’s connected world would be completely unrecognizable to the judges who made the decisions the government relies so heavily on: namely, Smith vs. Maryland (1979).
The DOJ has entered its brief [pdf link] for the Eleventh Circuit Court’s en banc re-hearing of US vs. Davis (2014), and it again attacks the defendant’s assertion that he has an expectation of privacy in his cell phone records. While the government does make a good point that it’s difficult for Davis to claim privacy expectations in a phone he refused to admit was his, it goes on to attack the premise that anyone has any expectation of privacy in their cell phone records. (All emphasis the DOJ’s.)
Davis may not make out a right to be secure in someone else’s “papers,” see U.S. Const. amend. IV, by complaining that those papers contained “his location data.” Evidence lawfully in the possession of a third party is not his, even if it has to do with him. Indeed, so far as the Fourth Amendment is concerned, Davis could not have prevented MetroPCS from producing the records in question even if they were his.
Here, the government argues that the records you generate by using a cell phone are not yours, nor will they ever be. They belong solely to the company that retains them and, as such, can be obtained with a minimum of paperwork or effort. It expands a bit on this argument a little later in the brief, but the underlying assertion is clear. These records are yours in the fact that they can identify you, but they are not yours should you seek to control access to them.
Certainly Davis could not have prevented the provider from turning over the records, but that skirts some of the issues with this case. AT&T argued that the information it collected was sensitive enough that it should require a warrant to obtain. The government could still obtain these records (as it argues here), but it would need to reach the slightly-higher bar of “probable cause,” rather than a court order or a subpoena.
The government leans on the nearly 40-year-old Smith decision as a prelude to its longer dismissal of any additional privacy expectations.
In general, courts have held that phone customers could not have maintained an actual expectation of privacy in routing-related business records made by a phone company to document transactions to which it was a party. See Smith, 442 U.S. at 741-43, 99 S.Ct. at 2580-82; United States v. Gallo, 123 F.2d 229, 231 (2d Cir. 1941). There is no cause to take a different view as to cell tower records.
The DOJ may say that cell phone records are pretty much the same as they’ve always been, but the dates of the cases cited don’t bear this out. One decision is 35 years old. The other is 73 years old. Phone records used to be limited to phone numbers only. Now, they carry additional data, including location — something that definitely wasn’t on the courts’ radar 40-70 years ago.
The DOJ then nails the point home, indicting US citizens as complicit in the removal of privacy expectations.
At any rate, Davis is not in a good position to complain that the government improperly obtained “his location data,” since he himself exposed and revealed to MetroPCS the very information he now seeks to keep private—i.e., the general vicinity information circumstantially inferable from cell tower records
“Exposed” and “revealed” are pretty harsh terms for something citizens are forced to give up in order to use cell phones. Without a doubt, many would like to keep this information private, but are unable to do so because even though they generate the records, they ultimately have no control over their distribution. Not only that, but they have considerably less access to records they’ve generated than law enforcement agencies do. The Third Party Doctrine has managed to turn the American public into handy little data generators — data that the government can avail itself of with nothing more than a subpoena.
The government further asserts that Davis’ stated “ignorance” of the fact that cell providers collect and store location data gives him no reason to claim an expectation of privacy. And this is true. Ignorance isn’t a worthwhile excuse. But many of us do know providers store this information and yet, there’s nothing that can be done about it other than to forgo the use of a cell phone altogether. That’s almost an impossibility in this world, but the government maintains the stance that all of this is optional — that we willingly create a wealth of data for third parties that can be accessed by law enforcement with minimal paperwork, let alone oversight. These are records we have no control over and yet the government is willing to use these against us while pretending we somehow have a choice in the matter.
Notably, the government also leans heavily on the Stored Communications Act to bolster its arguments — a 30-year-old law that still treats email over 180 days old as not worthy of a warrant. Again, times have changed but applicable decisions and laws haven’t. As it stands now, your life — as stored by third parties — is an open book.
This isn’t a great test case for privacy expectations in cell phone records. Davis refused to admit ownership of the phone linking him to the string of robberies, taking a lot of the wind out of his Fourth Amendment sails in the progress. Like the Dread Pirate Roberts/Silk Road case, the government has used the denial of ownership to undercut Fourth Amendment concerns (Ulbricht has denied the servers infiltrated by the FBI are his). Defendants are basically being put in the position of incriminating themselves or abandoning any privacy arguments — an unenviable position.
But the fact remains that location data can reveal far more about a person than the government is willing to admit. It’s not simply a “business record.” It’s a roadmap to a person’s connected existence. There should be an expectation of privacy, especially when the data gathered covers a span of days or weeks. But so far, the laws and the courts back up the government’s third party assertions.