Seventh Circuit Ignores Two Supreme Court Decisions To Hand Out Bad Precedent On Cell Site Location Info
from the doing-nothing-would-have-been-more-useful dept
The Seventh Circuit Appeals Court has issued a dubious ruling [PDF] on cell tower dumps — one that appears to ignore the Supreme Court’s decision declaring warrants are needed to obtain cell site location info. The criminal conduct leading to this questionable finding clearly shows robbing cellphone stores is a particularly bad idea. (h/t Orin Kerr)
[Lawrence] Adkinson and others, in July 2015, robbed a T-Mobile phone store in Clarksville, Indiana, and then a Verizon store in Kentucky the next day. With handguns drawn, they stole approximately 100 cell phones and other items. They later robbed nine additional stores, including three more T-Mobile stores.
T-Mobile investigated the first robberies. As part of its investigation, T-Mobile conducted “tower dumps”: it pulled data from cell sites near the first two victim stores to identify which phones had connected to them—and thus were close to the crimes. From these dumps, T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone’s account.
T-Mobile shared this information with law enforcement, leading to Adkinson’s arrest and conviction. Adkinson sought to suppress the evidence law enforcement obtained from T-Mobile, citing the Carpenter decision. If the appeals court had simply pointed out the Carpenter decision does not apply retroactively and moved on, it would have avoided the number of issues it has created with this published opinion, which will set precedent for the circuit.
The least troubling holding is this: T-Mobile did not act as a government agent when it forwarded the results of its internal investigation to law enforcement.
The government responds that the Fourth Amendment was not violated, and we agree for three primary reasons. First, T-Mobile is a private party, and Adkinson has not shown that it was the government’s agent. “A search or seizure by a private party does not implicate the Fourth Amendment” unless the private party “is acting as an instrument or agent of the government.” United States v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997) (internal quotation omitted). To demonstrate agency, Adkinson must establish either that T-Mobile agreed to act on the government’s behalf and to be subject to its control or that the government ratified T-Mobile’s conduct as its own. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citing RESTATEMENT (THIRD) OF AGENCY §§ 1.01, 4.01 (2006)). T-Mobile, however, acted in its own interest to prevent more robberies of its stores and recover its property when the company furnished data to the government; there is no evidence that it expected to receive any benefit from the government. Providing that data did not transform T-Mobile into an agent of the state.
When a private party hands info to the government, the government doesn’t need a warrant to look at whatever has been provided. As long as the government isn’t actively encouraging this sharing of information with promises of payments or perks, the Fourth Amendment won’t be violated.
But the court goes further than that, suggesting the Carpenter decision doesn’t cover tower dumps.
The case did not invalidate warrantless tower dumps (which identified phones near one location (the victim stores) at one time (during the robberies)) because the Supreme Court declined to rule that these dumps were searches requiring warrants. 138 S. Ct. at 2220. Adkinson also relies on policy guidance from the Department of Justice about cell-site data. But that policy guidance, by its own terms, “is not intended to and does not create any right, benefit, trust, or responsibility.”
But that’s not what the Supreme Court said. The court said cell site location info is protected by the Fourth Amendment. It did not stick a time limit on historical cell site data, declaring collections over x amount of days to be a search under the Fourth Amendment. Instead, it simply noted the obvious: cellphones are tracking devices people carry with them everywhere they go. This vast amount of precise location info should not be only a subpoena away from the government’s possession.
[W]e hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.
There was no carve-out for tower dumps in the Supreme Court’s decision. There’s one now in the Seventh Circuit.
More troubling is the court’s declaration that — contrary to the Supreme Court’s finding — clicking OK on a EULA somehow waives the privacy protections the Supreme Court extended to cell site location info.
Adkinson’s Fourth Amendment rights were still not violated because Adkinson consented to T-Mobile collecting and sharing his cell-site information. A defendant can voluntarily consent in advance to a search as a condition of receiving contracted services. See Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872 (7th Cir. 2013). As a condition of using a phone serviced by T-Mobile, Adkinson agreed to T-Mobile’s policy that T-Mobile could disclose information when reasonably necessary to protect its rights, interests, property, or safety, or that of others. And T-Mobile, in accordance with its policy, shared information with law enforcement after one of its stores was robbed at gunpoint.
If this is what the court wants to believe, then the Carpenter decision no longer exists in the Seventh Circuit. Every cellphone owner agrees to have information collected when they purchase a phone and use the provider’s phone service. They may agree this information can be handed over to law enforcement, but the Supreme Court clearly said this does not negate their privacy interest in the information shared with service providers.
As Orin Kerr points out, this ruling also ignores precedent set by another recent Supreme Court ruling. In Byrd, the court held that people who rent cars have a privacy interest in the rented vehicle, one that isn’t overcome by the driver not being “authorized” by the rental agreement. In both cases, the court stated that contractual agreements with private companies are not enough to eliminate citizens’ Fourth Amendment protections.
What could have been an open-and-shut case reaffirming two obvious conclusions — the lack of inherent retroactivity in the Carpenter decision and the inability of private searches (T-Mobile’s investigation) to violate Fourth Amendment protections — is instead a mess of precedential hot takes that directly contradict two recent Supreme Court decisions. Citizens residing in this circuit have just been informed their Fourth Amendment isn’t worth as much as it is elsewhere in the country.