Fifth Circuit Says No Warrants Needed To Obtain Near-Real Time Cell Site Location Info
from the prospective-records-just-records-apparently dept
The Fifth Circuit Appeals Court has issued a ruling on cell site location data which basically gives the government permission to engage in real-time tracking without a warrant. The acquisition of historical cell site location data is still the source of much judicial dispute. But at the federal appellate level, courts that have handled these cases have decided no warrant is needed. Location records are just another thing law enforcement can have warrantless access to, thanks to the Third Party Doctrine.
Prospective location records, like those obtained in this case, have received less scrutiny. While ostensibly third party records, these allow for “real-time” tracking of individuals using records flowing directly to law enforcement almost as quickly as they’re obtained by the cell service provider. A defendant tracked using this poor man’s Stingray moved to have the evidence suppressed, arguing the near-real time warrantless “search” violated his Fourth Amendment rights. The court disagreed, finding the momentary landing at the service provider was enough to make them third party records, even if law enforcement was figuratively (or possibly literally) hovering over the cell provider’s shoulder as the location records rolled in. From the ruling [PDF]:
There is little distinction between historical and prospective cell site data. As in Historical Cell Site Data, here the government sought “the disclosure of the locations of cell site towers being accessed by [Wallace’s] cell phone” as recorded in future records “captured, stored, recorded and maintained by the phone companies in the ordinary course of business.” “While this information is ‘prospective’ in the sense that the records had not yet been created at the time the order was authorized, it is no different in substance from the historical cell site information . . . at the time it is transmitted to the government.” Booker, 2013 WL 2903562, at *7. The information the government requested was, “in fact, a stored, historical record because it [was] received by the cell phone service provider and stored, if only momentarily, before being forwarded to law enforcement officials.”
So, as it stands here (and in other courts), the government is free to obtain phone records from the past and the future — and, with a “momentary” landing, location records as they’re produced. As the court states here, third party records are third party records, whether or not they’ve been created yet. Even if the officers were wrong about this, the good faith exception would have allowed them to keep the fruits of their search, according to the court.
It’s not a great decision. It allows law enforcement to ask for nearly any cell site location records without stating more than a few “articulable facts.” An order could be fashioned to serve as open-ended surveillance, allowing officers to track someone for an indefinite amount of time without ever showing a law enforcement need to do so. It also could serve as cover for Stingray use by providing a parallel set of “real-time” location records.
What the decision doesn’t explicitly do is give law enforcement permission to deploy Stingrays without warrants. Stingrays turn the government into the “third party,” which isn’t an acceptable use of the Third Party Doctrine. But that’s another area federal courts really haven’t delved into yet — not because Stingray use is so limited, but because the FBI-enforced secrecy surrounding cell tower spoofers has prevented defendants from mounting many successful challenges. Charges tend to be dismissed if defendants get too close to the truth.
It’s a published opinion so it has a little precedential weight. But the opinion spends more time quoting other opinions than breaking much new ground here. Unfortunately, the ground broken here is more victim-blaming, reminding defendants it’s their own fault they use cellphones, as if most cellphones users were keenly aware their phones act as tracking devices… and as if it weren’t a massive law enforcement boon that all of this info can be had without a warrant, thanks to a doctrine in severe need of a massive update.