Government Asks Appeals Court To Change Its Mind On Warrant Requirement For Cell Site Location Info

from the OP-PLS-RESPOND dept

The Fourth Circuit Court of Appeals might be revisiting its recent decision of imposing a warrant requirement on the acquisition of cell site location information. The government has asked for an en banc hearing to settle this issue.

As of now, there is no unified view on the privacy (or lack thereof) inherent to historical cell site information. Nathan Freed Wessler, staff attorney for the ACLU, has put together a map of current decisions that shows where warrant requirements have been established (for now — many are being appealed/challenged) and where they haven’t. (Click through for a [slightly] larger version.)

Back in August, the Appeals Court pointed out that cell phone users don’t voluntarily give up their expectation of privacy by “providing” certain information to “third parties” (cell phone providers). It’s actually the reverse. The phone companies collect this information. And while phone users may agree to allow cell providers to collect this (and they have no choice — without it, no cell provider would connect a call), they do not explicitly give the government permission to collect this information as well. And most people don’t even cognitively agree to hand it over to cell phone companies.

… First, the policy only states that Sprint/Nextel collects information about the phone’s location – not that it discloses this information to the government or anyone else.

Second, studies have shown that users of electronic communications services often do not read or understand their providers’ privacy policies. There is no evidence that Appellants here read or understood the Sprint/Nextel policy.

The government has leveraged the ignorance of the public just as often as service providers have. No one reads Privacy Policies and no one truly expects the government to have warrantless access to location information gathered by the providers. But the government has often successfully claimed it can obtain this information without a warrant, thanks to the Third Party Doctrine, which legally erases any expectation of privacy.

So, as the courts tiptoe towards a more unified view of the Fourth Amendment as it pertains to cell site location information, the government is fighting a multi-front battle to protect its warrantless access to a wealth of ostensibly personal information.

Hopefully, this battle will be uphill. In the request for the en banc hearing, the government notes the court’s unwillingness to apply the Third Party Doctrine to this information.

The majority flatly rejected application of the third-party doctrine. Op. 36-60. The majority sought to distinguish Miller and Smith on the ground that “the defendant in those cases had ‘voluntarily conveyed’ the information to the third party.” Op. 39; see Op. 42-43. The majority concluded that historical CSLI is not “voluntarily conveyed” because a “user is not required to actively submit any location-identifying information when making a call or sending a message.” Op. 44. Disregarding the undisputed evidence that cell phones cannot work unless the service provider knows which cell tower to use, and that Sprint/Nextel informed customers that it collected their location information, the majority deemed it “clear” that “cell phone users do not voluntarily convey their CSLI to their service providers.”

On the other hand, it points to dissenting opinions that note adding a requirement that users must “actively submit” information to third parties to consider it obtainable without warrants is at odds with several precedential decisions.

As Judge Motz observed, the majority’s insistence that an individual only “voluntarily conveys” what he “actively submits” contravenes long-established business records jurisprudence. See Op. 119-20. Customers do not “actively submit” the date, time, and duration of phone calls, but neither this Court nor any other court has held that such information is protected by the Fourth Amendment. The majority’s reasoning could have far-reaching consequences. For example, Internet communications are routed via IP address, and courts have held that users lack a reasonable expectation of privacy in IP address information, see, e.g., United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)—but users do not actively submit IP addresses to their service providers. The majority’s creation of a Fourth Amendment interest in such data vitiates the third-party doctrine and eliminates the bright line (or any discernable line at all) between information protected by the Fourth Amendment and information that belongs to a third-party.

However, considering the wealth of information routinely gathered as “business records” via personal cell phones, it’s perhaps time to start setting new precedents. While pen register orders can be used to obtain call data from landlines, these records provide no location information. The phone is locked to a single residence or business. (The same can be said for most IP addresses.) Today’s pocket narcs create records continuously, generating a persistent record of a person’s movements. And this location information is often generated without a single phone call being made — further distancing cell site location from old-fashioned call data.

The government also argues that the Supreme Court’s Jones decision — which dealt with the warrantless use of GPS tracking devices — shouldn’t be applied here, as historical cell site location data isn’t really the same thing. (It overstates the significance of the decision, which was about three-quarters “punt.”) Technically, it isn’t, but for the sake of the Fourth Amendment, it conceivably should be. While a tracking device may provide real-time location data, the location data obtained from cell phone providers offers the same sort of tracking, if only slightly delayed and with a little less accuracy.

No hearing has been granted yet, but government petitions tend to receive a bit more deference from the courts. When it does rehear this, the government will once again be arguing against the establishment of a warrant requirement — a permission slip that is often treated as a rubber-stampable formality by magistrate judges and just as routinely treated as an onerous burden by law enforcement agencies.

Filed Under: 4th amendment, cell site location info, csli, doj, fourth circuit