from the what-Smith-v.-Maryland-has-wrought dept
To date, four appeals courts have entered opinions on whether cell site location info is covered by the Fourth Amendment. So far, only the Fourth Circuit Court of Appeals has found this to be worthy of a warrant. All others find CSLI to be covered under the Third Party Doctrine. These cases all deal with historical cell site location info, usually obtained in bulk with subpoenas. Near real-time tracking using tower pings is another issue entirely -- one that's rarer because a) obtaining rolling CSLI from a provider is a pain and b) everyone's using Stingrays now.
The Sixth Circuit Court of Appeals is the fourth appeals court to find CSLI isn't covered by the Fourth Amendment. By this point, the arguments against greater privacy protections are all too familiar.
It's Just Metadata:
Content, per this distinction, is protected under the Fourth Amendment, but routing information is not.It's not as precise as other tracking methods, so not really a problem:
The defendants argue that the government’s collection of those records constituted a warrantless search in violation of the Fourth Amendment. In making that argument, however, the defendants elide both the distinction described above and the difference between GPS tracking and the far less precise locational information that the government obtained here.The amount of data gathered by the FBI is impressive. Relying on orders issued by three different magistrate judges, the FBI obtained 6-7 months of location info for 16 different cellphones. The coarse location info (accurate to within a half-mile in most cases) helped place two of the suspects near the scene of a couple of robberies. The suspects' attempt to suppress the evidence gathered by these orders made it all the way up the chain to the Appeals Court -- only to find the court affirm the lower court's denial of their motion.
The court quotes from 1979's Smith v. Maryland decision -- the cornerstone of a majority of pro-Third Party Doctrine arguments -- but fails to see any difference between obtaining call routing info tied to a non-mobile landline and information wholly unrelated to any communications generated by mobile phones as they connect to towers..
The court also quotes law enforcement's favorite argument: that people should know things they "share" involuntarily with cell providers are also things they involuntarily share with the government.
[A]ny cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone “exposes” its location to the nearest cell tower and thus to the company that operates the tower.As in other cases dismissed using this same rationale, this representation of what people should or shouldn't know isn't just inaccurate (and highly dismissive of people who don't realize this give-and-take is part of cellphone operation) but it's also disingenuous. People likely know they generate some sort of location information. What they don't assume is that law enforcement can access records of their movements without a warrant.
The opinion also name-drops the Stored Communications Act -- part of the abysmal Electronics Communication Privacy Act -- as part of the reason the court won't be extending an expectation of privacy to location data.
Some other points bear mention. One is that Congress has specifically legislated on the question before us today, and in doing so has struck the balance reflected in the Stored Communications Act. The Act stakes out a middle ground between full Fourth Amendment protection and no protection at all, requiring that the government show “reasonable grounds” but not “probable cause” to obtain the cell-site data at issue here. See 18 U.S.C. § 2703(d). The defendants and the ACLU effectively ask us to declare that balance unconstitutional. There is considerable irony in that request. The Katz standard asks whether the defendants’ asserted expectation of privacy “is ‘one that society is prepared to recognize as reasonable[.]’” Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 361). Here, one might say that society itself—in the form of its elected representatives in Congress—has already struck a balance that it thinks reasonable.Hardly. The ECPA is a farce -- one that the government has used for years to obtain communications in bulk without a warrant.
Now, as to the lowered bar for obtaining CSLI -- a proxy version of location tracking -- historical data, especially one as "coarse" as CSLI is likely not going to be found to be worthy of Fourth Amendment protection… at least not by the courts. (Even in the Fourth Circuit decision, the concern was about the quantity of records obtained, rather than that they were obtained without a warrant.) As the opinion somewhat notes in its nod to Congress, this is an issue that needs to be addressed by legislation that more accurately reflects the privacy expectations of the public. The Stored Communications Act does not.
But courts do need to be wary of relying on Smith v. Maryland and constantly deferring to the Third Party Doctrine. Even in its coarse, historical form, CSLI reveals far more about a person's movements than law enforcement could obtain through any other warrantless method than following suspects in person. Law enforcement should not be prevented from availing themselves of technological advances, but the benefits need to be balanced against the public's expectations of privacy in records generated and collected as a result of phone usage.
Certainly, no one objects to pen registers for call routing data, but people honestly do not consider themselves to be nothing more than massive databanks the government can dip into with the most minimal of court oversight. Given the fact that many law enforcement agencies are deploying cell site simulators under the cover of pen register orders, the new normal should be an expectation of privacy in involuntarily-generated location data. Law enforcement likely finds coarse location data to be accurate enough for indictments and prosecutions and the continued denial of Fourth Amendment protection only encourages them to obtain CSLI with a court order rather than clear the higher evidentiary hurdles presented by the use of GPS devices.
Unfortunately, without Congressional action, most courts can only rely on legal precedent -- and the bulk of it considers parties generated by members of the public but collected and stored by companies to be unprotected by the Fourth Amendment. The only thing that's going to take Smith v. Maryland off the judicial table is new legislation or a Supreme Court decision declaring location data to have an expectation of privacy. The former seems almost as likely as the latter, but neither can truly be considered inevitable.