The Privacy Implications of Historical Cell Site Location Data INTRODUCTION
Across the country, Americans use their cell phones for several purposes: making phone calls, sending text messages and emails, checking social media websites, and getting directions. In the not too distant past, an electronic device was only able to complete one task. For cell phones, this task was making and receiving phone calls. Another example of the one task electronic device is the Global Positioning System, or GPS, which was used to get directions from one place to another. The computer was the ultimate device because it was capable of running multiple programs that completed different tasks. With the development of the Internet, the computer became even more powerful. People across the world were now connected in a way that was never before possible. Such technology as e-mail, instant messaging, social media websites, and video chat has allowed people to communicate with one another instantaneously. Today, the smartphone has merged such devices as the cell phone, GPS, and computer into one handy, portable device.
Although smartphones have been used for several years, the words of Senator Leahy from the 1986 debate on the Electronic Communications Privacy Act still resonates today: “most people who use these new forms of technology are not aware that the law regarding the privacy and security of [electronic] communications is in tatters.”1 In 1986, cell phone service “ma[d]e ‘portable’ telephone service available in a car, a briefcase, or in rural areas not reached by telephone wire.”2 Today, cell phones are not so limited in their physical location. People carry cell phones with them everywhere they go, including inside their homes. “Cell phones register or identify themselves with nearby cell towers every seven seconds.”3 Because of this constant connection to cell towers, “[c]ell providers collect data from those contacts, which allows carriers to locate cell phones on a real-time basis and to reconstruct a phone’s movement from recorded data.”4 This collection of a cell phone’s connection to a cell tower is called cell site data. Historical cell site data is a collection of past connections, while prospective cell site data shows the current connection. This Note focuses only on the privacy implications of historical cell site data.
Cell phone and smartphone use has grown since the enactment of the Stored Communications Act (“SCA”). A Pew Internet study found that “[ninety-one percent] of the adult population now owns some kind of cell
1. 132CONG.REC. S14441, S14449 (1986) (statement of Sen. Patrick Leahy).
2. S.REP.NO. 99-541, at 9 (1986), reprinted in 1986 U.S.C.C.A.N. 3555. 3. State v. Earls, 70 A.3d 630, 632 (N.J. 2013).
phone.”5 The same study found that fifty-six percent of all American adults use smartphones.6 Another Pew Internet study found that “[seventy-four percent] of adult smartphone owners . . . say they use their phone to get directions or other information based on their current location.”7 Another study found “[m]ore than half of [mobile application] users have uninstalled or decided to not install an app due to concerns about personal information.”8 “[Fifty-four percent] of app users have decided to not install a cell phone app when they discovered how much personal information they would need to share in order to use it[,]” and “[thirty percent] of app users have uninstalled an app that was already on their cell phone because they learned it was collecting personal information that they didn’t wish to share[.]”9 These statistics show that smartphone users still care about their privacy and what information is available to others.
The SCA, codified at 18 U.S.C. §§ 2701-2711, has created a circuit split over the required standard of proof to obtain historical cell site data. During a criminal investigation, the agents of a governmental entity, such as the Federal Bureau of Investigation (“FBI”), can petition the court to grant an order requiring cell phone service providers to give the location records of a specific cell phone. Each time a call is made or received, the cell phone company stores, in their normal course of business, “(1) the date and time of the call; (2) the telephone numbers involved; (3) the cell tower to which the customer connected at the beginning of the call; (4) the cell tower to which the customer connected at the end of the call; and (5) the duration of the call.”10 This information is only collected during phone calls, not when the phone is dormant.11 The stored data does not provide an exact location of the cell phone, only a radius around the cell tower.12 The Government seeks to obtain this data in order to determine the general location of a suspect or to discover an area where criminal activity is usually conducted.
5. Aaron Smith, Smartphone Ownership 2013, PEW RES.INTERNET PROJECT (June 5,
2013), available at www.pewinternet.org/2013/06/05/smartphone-ownership-2013/. 6. Id.
7. Kathryn Zickuhr, Location-Based Services, PEW RES. INTERNET PROJECT (Sept. 12, 2013), available at www.pewinternet.org/2013/09/12/location-based-services/ (emphasis omitted).
8. Jan Lauren Boyles, Aaron Smith & Mary Madden, Privacy and Data Management on Mobile Devices, PEW RES.INTERNET PROJECT (Sept. 5, 2012), available at
www.pewinternet.org/2012/09/05/privacy-and-data-management-on-mobile-devices/ (emphasis omitted).
9. Id.
10. Government’s Memorandum of Law in Support of Request for Review at 1–2, In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304 (3d Cir. 2010) (No. 07-524), 2008 WL 3861765.
11. Id. at 2. 12. Id.
While this information supports a legitimate government purpose in criminal investigations, the courts have disagreed over whether this information constitutes a search protected by the Fourth Amendment. If obtaining this data is a search, then a warrant must be issued by a judge upon a showing of probable cause by the Government.13 This also means the cell phone user has a reasonable expectation of privacy in the historical location records. On the other hand, the SCA allows government agencies to obtain a court order under Section 2703(d), which has a lower standard of proof—“specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”14 If this so-called D-Order is granted, then the Government is not conducting a search, and an individual has no privacy rights in the location data. The Fifth Circuit held a D-Order is all the Government needs to obtain the records.15 On the other hand, the Third Circuit held a judge issuing an order has the discretion to require the Government to show probable cause and obtain a warrant.16 This holding is statutorily supported by Section 2703(c) of the SCA, which states:
(c) Records Concerning Electronic Communication Service or Remote Computing Service.—(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity—
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; [or]
(B) obtains a court order for such disclosure under subsection (d) of this section[.]17
Rule 41 of the Federal Rules of Criminal Procedure requires “probable cause to search for and seize a person or property or to install and use a tracking device.”18 This Rule applies only to protected property under the Fourth Amendment. Thus, the circuit split has created a different standard of proof depending on where the cell phone location information is sought.
13. See FED.R.CRIM.P. 41. 14. 18 U.S.C. § 2703(d) (2012).
15. In re U.S. for Historical Cell Site Data, 724 F.3d 600, 607 (5th Cir. 2013). 16. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 319 (3d Cir. 2010).
17. 18 U.S.C. § 2703(c) (2012). 18. FED.R.CRIM.P. 41(d)(1).
This Note explores the evolution of the SCA, examines the circuit split, and provides a proposed resolution to the conflict. Part I briefly explains the technology of cell phones. Part II examines the Congressional history of the SCA and how the purpose of the SCA has changed over time. Part III provides a short history of the evolution of Fourth Amendment jurisprudence to determine whether a warrant is required when obtaining historical cell phone location information. This section also provides an explanation of the most recent Supreme Court decision involving cell phones, Riley v. California. Part IV details the Third Circuit’s interpretation of 18 U.S.C. § 2703(d), ultimately holding that a magistrate or district court judge has the discretion to require specific and articulable facts or probable cause in order to obtain the historical cell site data. Part V describes the Fifth Circuit’s conclusion that the judge can only require the Government to show specific and articulable facts to obtain a D-Order. Part VI analyzes the aftermath of this split by looking at different lower court cases’ interpretations of this issue. Finally, Part VII proposes a solution to reconcile the legislative history, Fourth Amendment jurisprudence, and the courts’ holdings.
I. THE TECHNOLOGY
Before analyzing the legal implications of cell phone use, it is important to understand how the cell phone actually works. A city is divided into small cells, allowing millions of cell phone users to make calls at the same time.19 “Each cell is typically sized at about 10 square miles (26 square kilometers).”20 When a phone is first turned on, “it listens for a[] [System Identification Code[,] a unique . . . number that is assigned to each carrier by the FCC] on the control channel[,] . . . a special frequency that the phone and base station use to talk to one another about things like call set-up and channel changing.”21 Then, “the [Mobile Telephone Switching Office] keeps track of the phone’s location in a database” so the office knows which cell the phone is in.22 Cell phone companies also store the “‘sector’ of the tower’s coverage area [the] phone [is] in.”23 Sometimes the location of the cell phone can be narrowed to within a city block or a particular building.24 As the phone moves away from one cell and toward another cell, “[t]he two base stations coordinate with each other through the
19. Marshall Brian, Jeff Tyson & Julia Layton, How Cell Phones Work, HOWSTUFFWORKS, electronics.howstuffworks.com/cell-phone1.htm (last visited Mar. 17, 2015).
20. Id.
21. Id.
22. Id.
23. Protecting Your Location Information, SURVEILLANCE SELF-DEFENSE PROJECT, https://web.archive.org/web/20131026161613/https://ssd.eff.org/3rdparties/protect/location (last visited Mar. 17, 2015) (accessed by following link to Internet Archive from original site, https://ssd.eff.org/3rdparties/protect/location).
[mobile telephone switching office].”25 These base station transactions are stored with the service provider, just like when the phone is turned on. Smartphones use this same process to send and receive data.26
Next, it is important to realize what type of information cell phone service providers store and the amount of time that information is held. Each cell phone service provider has different policies on this issue.27 Subscriber information is stored for three to five years (Verizon), five years (T-Mobile), depending on the length of service (AT&T/Cingular), or forever (Sprint/Nextel/Virgin Mobile).28 Call detail records are stored for one rolling year (Verizon), two years (T-Mobile pre-paid phones/Virgin Mobile), five years (T-Mobile post-paid phones), five to seven years (AT&T/Cingular post-paid phones), or eighteen to twenty-four months (Sprint/Nextel).29 Information about the cell towers used by the phone is stored for one rolling year (Verizon), eighteen to twenty-four months (Sprint/Nextel), or from July 2008 (AT&T/Cingular).30 Other information, such as text message details and content, pictures, IP session and destination information, bill copies, and payment history also varies.31 Even though this information itself is concerning, according to the American Civil Liberties Union (“ACLU”), “[i]t’s still unclear just how often law enforcement accesses Americans’ cell phones without warrants. We do know that the cases number well into the thousands, possibly the tens of thousands.”32
In August 2011, the ACLU requested information from law enforcement agencies regarding “their policies, procedures and practices for tracking cell phones.”33 About 250 local law enforcement agencies responded to the request.34 The responses showed that cell phone tracking
25. Brian et al., supra note 19.
26. Dave Coustan, Jonathan Strickland & John Perritano, How Smartphones Work, HOWSTUFFWORKS, electronics.howstuffworks.com/smartphone3.htm (last visited Mar. 17, 2015).
27. Cell Phone Location Tracking Request Response – Cell Phone Company Data Retention Chart, AM. CIV. LIBERTIES UNION, https://www.aclu.org/cell-phone-location-tracking-request-response-cell-phone-company-data-retention-chart (last visited Mar. 17, 2015).
28. Id.
29. Id.
30. Id.
31. Seeid.
32. How the Government is Tracking Your Movements, AM.CIV.LIBERTIES UNION, https://www.aclu.org/how-government-tracking-your-movements (last visited Mar. 17, 2015).
33. Cell Phone Location Tracking Public Records Request, AM. CIV. LIBERTIES
UNION,
https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request (last visited Mar. 17, 2015). 34. Id.
is routine, but only some agencies obtain warrants for this information.35 Also, the legal standards used to obtain cell phone location information vary from department to department.36 Furthermore, the information sought varied from information about one phone number to “every telephone that called or was called by a specific phone.”37 Even if officers do not have a specific number, they can receive “the cell phone numbers of all individuals located at a particular location at a particular time.”38 This type of information gathering is known as a tower dump. “Following a crime, law enforcement officials locate nearby cell towers and request all of the call, text, and data transmissions that occurred during the crime from the tower’s provider. The majority of the data collected belongs to individuals with no connection to the crime.”39
With an understanding of how cell phones work and how law enforcement collects stored information, it is also important to explain the evolution of the SCA through its legislative history in order to appreciate the difference in technology from the 1960’s to today.
II. LEGISLATIVE HISTORY
Initially, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter “Title III”) was the law that protected the privacy of communications, but this privacy was limited to only those unauthorized interceptions that could be heard with the human ear.40 Between 1968 and 1986, technology had advanced so much that the law evolved to reflect those changes. The 1980’s saw the emergence of new technologies like “electronic mail, voice mail, electronic bulletin boards, computer storage, cellular telephones, video teleconferencing, and computer-to-computer links.”41 Also, Title III only protected a phone call transmitted through a common carrier.42 By 1986, there were several companies providing electronic communication services, but calls made through those companies were not protected under Title III because they were not common carriers.43 Companies providing this service also began storing records, including personal and business information, electronically on
35. Id.
36. Id.
37. ACLU Affiliate Nationwide Cell Phone Tracking Public Records Requests Findings and Analysis, AM. CIV. LIBERTIES UNION (Apr. 2, 2012), https://www.aclu.org/files/assets/cell_phone_tracking_documents_-_final.pdf.
38. Id.
39. Jess Remington, Police Use “Tower Dumps” To Collect Cell Phone Data Without A Warrant, REASON.COM (Dec. 4, 2013, 12:34 PM), http://reason.com/blog/2013/12/04/police-use-tower-dumps-to-collect-your-c.
40. S.REP.NO. 99-541, at 2 (1986).
41. 132 CONG.REC. S14441, S14449 (1986) (statement of Sen. Patrick Leahy). 42. S.REP.NO. 99-541, at 2 (1986).
computers.44 Congress was concerned with the erosion of privacy rights over all types of communication if it did not act to protect these emerging technologies.45
During the 1980’s, new technologies were emerging that were not covered in Title III. Congress updated Title III with the Electronic Communications Privacy Act of 1986 (hereinafter “ECPA”).46 The ECPA was a comprehensive privacy initiative introduced “to protect legitimate law enforcement needs while minimizing intrusions on the privacy of system users as well as the business needs of electronic communications system providers.”47 The Committee on the Judiciary was also concerned with computerized record keeping systems and the loss of “lock[ing] away a great deal of personal and business information.”48 The Committee recognized that this type of record keeping might not receive constitutional privacy protection because of the third-party exception doctrine.49 While writing the ECPA, Congress gathered information from the Department of Justice, the ACLU, and the Institute of Electrical and Electronics Engineers in order to reflect various positions on emerging technologies in the ECPA.50
Even though the overarching purpose of the ECPA was to provide guidelines for law enforcement to follow when dealing with emerging technologies, the ECPA also provided laws on other information and definitions for these emerging technologies. For example, the ECPA clarified law enforcement wiretap procedures.51 Also, the SCA, which is Title II of the ECPA, defined “electronic storage” as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and [] any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”52
Under the SCA, the Government could obtain the contents of a communication held in electronic storage through a warrant.53 For the contents of a communication in a remote computing service, the Government could secure a warrant and was not required to give notice to the subscriber or customer.54 Otherwise, the Government could receive that content with prior notice from the customer or subscriber using a
44. Id. at 3.
45. Id. at 5. 46. Id. at 4–5.
47. 132 CONG.REC.S14441, S14449 (1986) (statement of Sen. Patrick Leahy). 48. S.REP.NO.99-541, at 3 (1986).
49. Id. (citing United States v. Miller, 425 U.S. 435, 443–45 (1976)). 50. Id. at 4.
51. Id. at 5.
52. 18 U.S.C. § 2510(17)(A)–(B) (2012). 53. Id. § 2703(a).
subpoena or court order (i.e., the D-Order).55 These communications were only stored to provide the electronic service to the customer and not so the provider can access the contents.56
In order to obtain the records of electronic communication service or remote computing service, the Government could seek a subpoena,57 a warrant,58 a court order (i.e., the D-Order),59 or consent of the subscriber or customer.60 A court order may be “issue[d] only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”61 This provision gave the Government an easier method to obtain information related to an ongoing criminal investigation. But the company receiving the order to gather this information could move to “quash or modify [the] order, if the information or records requested [were] unusually voluminous in nature or compliance with [the] order otherwise would cause an undue burden on [the] provider.”62 This provision is undermined by the requirement that the Government must pay the company gathering the information.63 As a method of increasing profits, a company may be more willing to gather a potentially overly burdensome request if it is getting paid. It is difficult to imagine a company that would challenge such an order when contesting the order requires paying attorney fees and court costs (i.e., an expense) while complying with the order results in payment (i.e., a profit).
The ECPA provided a relatively adequate foundation to protect the privacy of electronic communications and also provided guidelines for law enforcement to follow when attempting to obtain that information. Congress was concerned with protecting telephone company customers’ information and communications and preventing telephone companies from becoming “a branch of Government law enforcement.”64 The Government was required to follow the procedures articulated in the ECPA before obtaining information from the telephone companies or placing a wiretap on a phone line.
In 1994, Congress specified the types of information that can be obtained through a subpoena in the Communications Assistance for Law
55. Id. § 2703(b)(1)(B)(i)–(ii). 56. Id. § 2703(b)(2)(A)–(B). 57. Id. § 2703(c)(2). 58. Id. § 2703(c)(1)(A). 59. Id. § 2703(c)(1)(B). 60. Id. § 2703(c)(1)(C). 61. Id. § 2703(d). 62. Id. 63. Id. § 2706. 64. S.REP.NO.99-541, at 29 (1986).
Enforcement Act (“CALEA”).65 This Act extended the protections of the ECPA “to cordless phones and certain data communications transmitted by radio.”66 CALEA sought to balance the ability of law enforcement agencies to carry out wiretaps, “privacy in the face of increasingly powerful and personally revealing technologies[,]” and the development of new services and technologies.67
In 2009, sections of CALEA were edited according to the Foreign Evidence Request Efficiency Act of 2009 (hereinafter “FEREA”). Proponents of FEREA were concerned with the convoluted web of judicial entities involved in carrying out requests from foreign governments to investigate people in the United States.68 These changes to the SCA may have streamlined the process for obtaining information for foreign entities, but it also opened the door for the Government to gather data on domestic individuals.
Currently, Congress is exploring the changes in technology since 1986 and how the SCA affects privacy interests in these new technologies, including cell phone location information. Hearings have educated Congress on the current status of the legal requirement to access this information.69 Several bills have been proposed to amend the SCA to protect privacy interests. One of these is the Telephone Records Protection Act, which would repeal section 2703(c)(2)(C) of the SCA—the requirement that the electronic service provider disclose the “local and long distance telephone connection records, or records of session times and durations” to the Government.70
Also, members of Congress have proposed the Electronic Communications Privacy Act Amendments Act of 2013, which would change several aspects of the ECPA. First, the Government would have to notify the customer within ten business days that the contents of a communication were obtained through a warrant.71 Currently, the Government obtains cell phone location information without notifying the customer or providing the customer an opportunity to contest the reasonableness of the warrant or D-Order before disclosure.72 Also, the proposed bill would limit the availability of a D-Order. The Government could only obtain a D-Order if it “submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the
65. See H.R.REP.NO.103-827, pt. 1 (1994). 66. Id. at 12. 67. Id. at 15. 68. 155 CONG.REC. H10092–94 (2009). 69. H.R.REP.NO.111-712 (2011). 70. H.R. 2014, 113th Cong. (2013); 18 U.S.C. § 2703(c)(2)(C) (2012). 71. S. 607, 113th Cong. § 3 (2013).
72. Brief of the ACLU Foundation et al. as Amici Curiae in Support of Affirmance at 45–46, In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) (No. 11-20884), 2012 WL 1029813.
name, address, and place of business of a subscriber or customer of the provider or service that is engaged in telemarketing.”73 In response to this limitation, the bill expands subpoena power for records kept in the normal course of business.74 Finally, the bill requires the Comptroller General of the United States to submit a comprehensive report of all the instances in this past five years when information was obtained under section 2703 of the SCA, the amount of time a service provider spent collecting the requested information, and the number of delayed notification requests.75
Finally, another proposed bill is the Online Communications and Geolocation Protection Act. Under this bill, an entire new chapter would be included to protect geolocation information, which would be defined as:
any information that is not the content of a communication, concerning the location of a wireless communication device or tracking device . . . that, in whole or in part, is generated by or derived from the operation of that device and that could be used to determine or infer information regarding the present, prospective, or historical location of the individual.76
The bill also prohibits any company that collects or uses geolocation information from disclosing this information to the Government unless the customer consents or the Government obtains a warrant.77 Three days after receiving the requested information, the Government must send a copy of the warrant to the customer.78 If this bill became law, the whole issue of whether a magistrate judge has discretion to require the Government to show probable cause or specific and articulable facts would be eliminated. The Government would be required to show probable cause and obtain a warrant in order to receive any type of cell phone location data from cell phone service providers.
In order to fully appreciate the potential benefits of legislative changes to the SCA, one must understand the theories of privacy the Supreme Court has articulated in cases implicating the Fourth Amendment.
III. PRIVACY THEORY AND FOURTH AMENDMENT JURISPRUDENCE
What is privacy? According to Professor Raymond Wacks, an expert on the right of privacy, “[a]t the most general level, the idea of privacy embraces the desire to be left alone, free to be ourselves—uninhibited and unconstrained by the prying of others.”79 It is also defined as “the right to control knowledge about our personal lives, the right to decide how much
73. S. 607, 113th Cong. § 3 (2013). 74. Id. 75. Id. § 5. 76. H.R. 983, 113th Cong. § 3 (2013). 77. Id. 78. Id. § 2.
information gets revealed to whom and for which purposes.”80 Alan Westin identified four functions of privacy: it (1) encourages personal autonomy, (2) provides emotional release, (3) allows us self-evaluation, and (4) offers us a place to share secrets.81 Privacy protects personal information, which includes “the quality of the information and . . . the reasonable expectations of the individual concerning its use.”82
One of the first cases explaining the Fourth Amendment was
Olmstead v. United States, where the Court held there is no Fourth Amendment violation when there is no actual physical invasion of the defendant’s property.83 The Fourth Amendment’s protection against unreasonable searches and seizures only extended to material things.84 Justice Brandeis’s famous dissent emphasized the Fourth Amendment protects people and not places: “every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”85 He determined the framers of the Constitution conferred in the Fourth Amendment “the right to be let alone [by the Government]—the most comprehensive of rights and the right most valued by civilized men.”86 This was the beginning of the right of privacy.
In 1967, a majority of the Supreme Court adopted Justice Brandeis’s dissent from Olmstead in Katz v. United States, holding “the Fourth Amendment protects people, not places.”87 Writing for the majority, Justice Stewart explained the privacy right: “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected . . . .”88 Justice Harlan’s concurrence established the reasonable expectation of privacy two-prong test: (1) “that a person have exhibited an actual (subjective) expectation of privacy” and (2) “that the expectation be one that society is prepared to recognize as ‘reasonable.’”89 He also explained that there is no privacy protection for conversations or objects a person knowingly exposes to the public.90
80. STEPHEN J.SCHULHOFER,MORE ESSENTIAL THAN EVER:THE FOURTH AMENDMENT IN THE TWENTY-FIRST CENTURY 130 (2012).
81. WACKS, supra note 79, at 34–35. 82. Id. at 47 (emphasis omitted).
83. Olmstead v. United States, 277 U.S. 438, 464–66 (1928). 84. Id.
85. Id. at 478–79 (Brandeis, J., dissenting). 86. Id. at 478 (Brandeis, J., dissenting).
87. Katz v. United States, 389 U.S. 347, 351 (1967). 88. Id.
89. Id. at 361 (Harlan, J., concurring). 90. Id.
Then in 1979, the Supreme Court held in Smith v. Maryland there is no privacy right to dialed phone numbers.91 The Court stated, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”92 Thus, one who dials a phone number “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business.”93 Justice Marshall dissented and found fault with the majority’s reliance on the third-party doctrine, stating “[p]rivacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.”94 Professor Schulhofer, an expert on the Fourth Amendment, concluded the Court is “imply[ing] that the customer can communicate in some other way, and that is simply not true.”95
In United States v. Knotts, the Supreme Court held there is no reasonable expectation of privacy when driving a car on public roads.96 Without a warrant, officers placed a tracking beeper inside a chemical drum sold to drug manufacturers.97 Since the device only tracked movement in plain view of others on the highway, officers could enhance their visual surveillance with technology without violating the Fourth Amendment.98
A year later, the Supreme Court differentiated placing a tracking beeper that travels on public highways to those tracking devices that enter homes in United States v. Karo.99 The Court concluded “private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one [] society is prepared to recognize as justifiable.”100 The tracking beeper that enters the home reveals information unavailable to someone outside the home.101 The interior of a house is inaccessible to the Government without a warrant.102 With cell phone location data, the service provider does not know whether the information reveals a public location or a private one. When there is no way to determine if the location
91. Smith v. Maryland, 442 U.S. 735, 744–45 (1979). 92. Id. at 743–44.
93. Id. at 744.
94. Id. at 749 (Marshall, J., dissenting). 95. SCHULHOFER, supra note 80, at 131.
96. United States v. Knotts, 460 U.S. 276, 281 (1983). 97. Id. at 278.
98. Id. at 282.
99. United States v. Karo, 468 U.S. 705 (1984). 100. Id. at 714.
101. Id. at 716. 102. Id. at 715.
is public or private, the court issuing an order for cell phone location data should err on the side of caution and require a warrant.
In United States v. Jones, the Supreme Court held the officers violated Jones’s Fourth Amendment rights when they attached a GPS tracker to his vehicle, trespassing on a legally protected area.103 “[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”104 Justice Sotomayor’s concurrence foreshadowed the problems that would arise with the Court’s narrow decision: “[I]n cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance.”105 She thought the Government could use tracking devices installed in GPS-enabled smartphones in order to locate a person or a phone without the owner’s consent.106 “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”107 One concern of collecting and storing these types of location records is the availability to “efficiently mine them for information years into the future . . . .”108 This type of “GPS monitoring is cheap in comparison to conventional surveillance techniques[.]”109 Also, “it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’”110
Such power is “susceptible to abuse” if there are no constraints on tracking manufacturer- or user-installed GPS.111 Justice Sotomayor succinctly concluded the effect of this type of tracking:
The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.112
103. United States v. Jones, 132 S. Ct. 945, 952 (2012). 104. Id. at 952 (emphasis omitted).
105. Id. at 955 (Sotomayor, J., concurring). 106. Id.
107. Id.
108. Id. at 955–56 (Sotomayor, J., concurring) (citing United States v. Pineda-Moreno, 617 F.3d 1120, 1124 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc)).
109. Id. at 956 (Sotomayor, J., concurring).
110. Id. (quoting Illinois v. Lidster, 540 U.S. 419, 426 (2004)). 111. Id.
112. Id. (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring), judgment vacated by Cuevas-Perez v. United States, 132 S. Ct. 1534 (2012)).
In considering the reasonable expectation of privacy of location information, the Court should consider “these attributes of GPS monitoring[.]”113 Justice Sotomayor “would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance[.]’”114
Justice Sotomayor would also have the Court reconsider the usefulness of the third-party doctrine: “[m]ore fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”115 The third-party doctrine
is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.116
Justice Sotomayor “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”117
In his concurrence, Justice Alito stated that he “would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”118 Justice Alito was also concerned about the future of technology, stating,
Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.119
113. Id.
114. Id. (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)). 115. Id. at 957 (Sotomayor, J., concurring).
116. Id.
117. Id.
118. Id. at 958 (Alito, J., concurring). 119. Id. at 962 (Alito, J., concurring).
He also considered the statistics of cell phone usage throughout the country and the availability of cell phone service providers “to track and record the location of users . . . .”120 Justice Alito agreed with Justice Sotomayor that “[t]he availability and use of these and other devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.”121 He also mentioned the effect changes in technology have had on the cost of surveillance and concluded that the legislature, not the judiciary, is the appropriate branch of government to update laws reflecting changes in technology:
In the pre-computer age, . . . [t]raditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken . . . . Devices like the one used in [the Jones case], however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way. To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes.122
These cases are the foundation of the Supreme Court’s interpretation of the Fourth Amendment and the right of privacy in location information. The most recent Supreme Court case involving information contained on a cell phone and privacy was decided in June 2014. In Riley v. California, the Court heard People v. Riley, an appeal from California, and United States v. Wurie, an appeal from Massachusetts, both of which presented the question of “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”123 Although this case involves a search incident to arrest as opposed to information gathered during an investigation, it provides insight into the Justices’ current thoughts on privacy rights and cell phones.
In Riley v. California, a police officer stopped Riley for driving with expired registration tags.124 During the stop, the officer discovered Riley’s license was suspended and impounded the car.125 The police officer found two handguns under the hood, and “Riley was arrested for possession of concealed and loaded firearms . . . .”126 The police seized his smartphone
120. Id. at 963 (Alito, J., concurring) (stating “as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.”).
121. Id.
122. Id. at 963–64 (Alito, J., concurring).
123. Riley v. California, 134 S. Ct. 2473, 2480 (2014). 124. Id.
125. Id.
incident to that arrest.127 Some of the contents of the phone indicated Riley was part of the “Bloods” street gang.128 About two hours after the arrest, “a detective specializing in gangs” examined videos and pictures on the phone, which further implicated Riley’s involvement in the Bloods.129 Other photographs showed “Riley standing in front of a car [the police] suspected had been involved in a shooting a few weeks earlier.”130 The police charged Riley for various crimes committed during the previous shooting.131 “Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone[, arguing] that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances.”132 Riley’s motion was denied, “some of the photographs were admitted into evidence[, and] Riley was convicted . . . .”133
In United States v. Wurie, police observed Wurie engage in what appeared to be a drug sale during routine surveillance.134 Police arrested Wurie.135 Two cell phones were found on him at the police station.136 One of the phones, a flip phone, “was repeatedly receiving calls from a source identified as ‘my house’ on the phone’s external screen.”137 After a few minutes, the officers opened the phone to look at Wurie’s call log.138 The wallpaper was a picture “of a woman and a baby[.]”139 In order to look at the call log, the officers pressed one button.140 The officers pressed one more “button to determine the phone number associated with the ‘my house’ label.”141 Then, an officer looked up the number online and discovered the address associated with that number.142
Officers then went to the address and observed Wurie’s name on the mailbox and a woman in the apartment who looked like the one on the phone’s wallpaper.143 They obtained a warrant for the apartment and seized evidence of drug dealing.144 After being charged, Wurie “moved to
127. Id. 128. Id. 129. Riley, 134 S. Ct. at 2480–81. 130. Id. at 2481. 131. Id. 132. Id. 133. Id. 134. Id. 135. Riley, 134 S. Ct. at 2481. 136. Id. 137. Id. 138. Id. 139. Id. 140. Id. 141. Riley, 134 S. Ct. at 2481. 142. Id. 143. Id. 144. Id.
suppress the evidence obtained from the search of the apartment, arguing that it was the fruit of an unconstitutional search of his cell phone[,]” but the district court denied the motion.145 On appeal, the First Circuit “held that cell phones are distinct from other physical possessions that may be searched incident to arrest without a warrant, because of the amount of personal data cell phones contain and the negligible threat they pose to law enforcement interests.”146
The Court held “a warrant is generally required before [searching the contents of a cell phone], even when a cell phone is seized incident to arrest.”147 Chief Justice Roberts, writing for the majority, weighed the intrusion upon an individual’s privacy and the promotion of a legitimate governmental interest, here officer safety during an arrest.148 He aptly stated, “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”149 Chief Justice Roberts concluded “[c]ell phones[, or what he calls ‘minicomputers,’] differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”150 While most of the majority’s discussion focused on the amount and type of information stored on phones, Chief Justice Roberts mentioned privacy implications of historic location data151 and even quoted Justice Sotomayor’s concurrence from United States v. Jones.152 Potentially, future Supreme Court cases involving cell phones could further articulate the relationship between the right of privacy and information stored on cell phones themselves and by cell phone service providers.
In the interim, the Third Circuit and the Fifth Circuit disagree over the proper interpretation of the Fourth Amendment and the right of privacy in historical cell phone location information.
145. Id. at 2482.
146. Id. (citing United States v. Wurie, 728 F.3d 1, 8–11 (1st Cir. 2013)). 147. Riley, 134 S. Ct. at 2493.
148. Id. at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). 149. Id.
150. Id. at 2489 (comparing a cell phone to a cigarette pack, wallet, and purse). 151. Id. at 2490 (stating, “Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”).
152. Id. (quoting United States v. Jones, 565 U.S. ___, ___, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”)).
IV. THE THIRD CIRCUIT
The Third Circuit held in In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, a Magistrate Judge has discretion to require a warrant based on probable cause or to allow the lesser standard of specific and articulable facts for a D-Order.153 In that case, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) were investigating drug trafficking activities.154 The ATF learned that the subject of their investigation used his cell phone to conduct his business and arrange meetings.155 The agency applied for a D-Order to obtain the subject’s historical cell-site records and discover more information about the subject.156 “[T]he Magistrate Judge denied the Application, ruling . . . the United States is barred as a matter of law from obtaining historical cell-site information pursuant to a [D-Order].”157 This was based on the difference between wire communications and electronic communications and the Magistrate Judge’s determination that the historical cell-site information was equivalent to a tracking device.158
The Court looked to the language of the statute to determine if tracking devices could be included in a D-Order.159 The Government can only obtain historical cell-site information data from an electronic communication service provider.160 The SCA defines “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications[.]”161 An “electronic communication” does not include communications from a tracking device.162 A “tracking device” is “an electronic or mechanical device which permits the tracking of the movement of a person or object” and requires a warrant in order to be installed.163 On appeal, the Government argued the information sought was only a wire communication, which can be requested pursuant to a D-Order.164 A “wire communication” is defined as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the
153. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 319 (3d Cir. 2010).
154. Government’s Memorandum of Law in Support of Request for Review, supra
note 10, at 3. 155. Id.
156. Id.
157. Id. at 4.
158. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 309 (3d Cir. 2010).
159. Id.
160. Id. (quoting 18 U.S.C. § 2703(c)(1) (2006)). 161. 18 U.S.C. § 2510(15) (2012).
162. Id. § 2510(12)(C). 163. Id. § 3117.
164. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 309 (3d Cir. 2010).
aid of wire, cable, or other like connection between the point of origin and the point of reception . . . .”165 The Third Circuit concluded the information was a wire communication and not an electronic communication.166 Therefore, the Government may request this information through a D-Order.167
The other issue in this case involved the standard of proof the government must show in order to obtain historical cell-site data.168 The Magistrate Judge concluded that cell phones act like tracking devices so probable cause was required by the Government.169 On appeal, the Government argued it was not seeking exact location data in this case and should be allowed to obtain a D-Order.170 The Third Circuit agreed with the Magistrate Judge that a D-Order could contain precise location information.171 But, the court disagreed with the Magistrate’s reasonable expectation of privacy argument.172 The court did not agree that the historical cell-site information extended into the interior of a home, an area protected by the Fourth Amendment.173
Also, the Third Circuit examined the legislative history of the ECPA to determine the congressional intent of location information.174 The ECPA was enacted in 1986 in order “to protect against the unauthorized interception of electronic communications . . . .”175 In 1994, section 2703 of the SCA was amended to extend the ECPA to cordless phones.176 The D-Order standard is an intermediate one, and the order is granted when “there are specific and articulable grounds to believe that the records are relevant and material to an ongoing criminal investigation.”177
The Third Circuit concluded “the statute, as presently written, gives the [Magistrate Judge] the option to require a warrant showing probable
165. Id. § 2510(1).
166. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 310 (3d Cir. 2010).
167. Id. (quoting 18 U.S.C. §§ 2510(15), 2703(c) (2006)). 168. Id.
169. Id. at 311. 170. Id.
171. Id.
172. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d at 313.
173. Id. at 312–13. 174. Id. at 313.
175. Id. (quoting S.REP. NO. 99-541, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3555).
176. Id. at 314 (quoting S.REP.NO. 103-402, at 10 (1994)).
177. Id. (quoting S.REP.NO. 103-402, at 31 (1994); H.R.REP.NO. 103-827, pt. 1, at 31 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3511).
cause.”178 The Court cautioned that this “option [should] be used sparingly because Congress also included the option of a [D-Order].”179
V. THE FIFTH CIRCUIT
The Fifth Circuit concluded in In reU.S. for Historical Cell Site Data, a Magistrate Judge cannot deny a D-Order when the Government provides specific and articulable grounds to believe that the records are relevant and material to an ongoing criminal investigation.180 In this case, the Government sought three D-Orders for three separate investigations.181 In each application, the Government requested “the antenna tower and sector to which the cell phone sends its signal” during a call and when the phone was idle.182 The Magistrate Judge concluded “[c]ompelled warrantless disclosure of cell site data violate[d] the Fourth Amendment.”183
In reaching its conclusion, the Fifth Circuit analyzed the language of the statute.184 “[A D-Order] shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe [that the records] sought[] are relevant and material to an ongoing criminal investigation.”185 According to the court, “the ‘shall issue’ term directs the court to issue the order if all the necessary conditions in the statute are met.”186 Those conditions are: (1) “a provider of electronic communication service or remote computing service” (2) “to disclose a [non-content] record or other information pertaining to a subscriber to or customer of such service” (3) when the Government meets the “specific and articulable facts” standard.187
This court distinguished the information the cell site data reveals and the entity gathering the data.188 The ACLU argued the information is equivalent to a tracking device and, therefore, requires a warrant supported by probable cause.189 “[M]ost people carry cell phones on their person at all times, making the tracking more detailed and invasive.”190 The Government contended the Katz principle applied:
178. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d at 319.
179. Id.
180. In re U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013). 181. Id. at 602.
182. Id. (quoting In re U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 829 (S.D. Tex. 2010)).
183. Id. (quoting In re U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 846 (S.D. Tex. 2010)).
184. Id. at 607–09 (emphasis added). 185. 18 U.S.C. § 2703(d) (2012).
186. In re U.S. for Historical Cell Site Data, 724 F.3d at 607. 187. Id.
188. Id. at 608. 189. Id.
[T]he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion . . . . But the protection of a person’s general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his
very life, left largely to the law of the individual States.191
According to the Government, “when determining whether an intrusion constitutes a search or seizure, [the line is drawn] based on whether it is the Government collecting the information or requiring a third party to collect and store it, or whether it is a third party, of its own accord and for its own purposes, recording the information.”192
The ACLU also provided information on the role of the magistrate judge in these cases.193 The magistrate judge has the ultimate role of “safeguard[ing] constitutional rights in the face of rapidly changing technology.”194 Also, “the application stage is the only point at which the rights of innocent Americans to be free from warrantless location tracking may be vindicated, for without a subsequent criminal prosecution they are unlikely to even learn that they were targets.”195 Furthermore,
[I]f a magistrate judge believes he is being asked to authorize an unconstitutional act, preventing him from denying the application results in the expenditure of considerable government resources in pursuit of a course of action that may later be found illegal and unusable in court proceedings. And that in turn results in unnecessary privacy intrusions into the lives of innocent people, against whom a criminal case may never be brought, and who may never realize they were being surveilled by the government.196
The magistrate judge provides an important role in protecting the privacy rights of those who have been tracked without notification and without a warrant.
These cases from the Third Circuit and Fifth Circuit have created further discrepancies in lower court decisions attempting to apply the appropriate rule based on the courts’ jurisdictions.
191. Id. (quoting United States v. Katz, 389 U.S. 347, 350–51 (1967)). 192. In re U.S. for Historical Cell Site Data, 724 F.3d at 610.
193. See Brief of the ACLU et al. as Amici Curiae in Support of Affirmance, supra
note 72, at 8. 194. Id. at 14. 195. Id. at 17. 196. Id. at 15–16.
VI. AFTERMATH—AN OVERVIEW OF LOWER COURTS’DECISIONS
INTERPRETING THESE CASES
This section analyzes whether there are any novel issues in this area. Perhaps courts are more willing to rule a certain way based on the facts of the specific case. A magistrate or judge may grant a D-Order for an investigation into a major drug cartel while judicial discretion to require probable cause may be required in an investigation into one person.
A. Courts Following the Third Circuit
One of the cases following the Third Circuit’s analysis involved a Government request for a D-Order for specific information during the investigation of three murders.197 The Government sought “[t]he name; address; local and long-distance telephone connection records, or records of session times or durations; telephone . . . number . . . not including the contents of any communication for their cell tower(s) activity within closest proximity to [specified] GPS Coordinates . . . for” two hours on a specific date.198 The court found the Government’s purpose in identifying the perpetrators of the crime important to grant the D-Order.199
A New Jersey court held “individuals have a reasonable expectation of privacy in the location of their cell phones . . . .”200 This case arose from a burglary investigation.201 Officers contacted T-Mobile three times in one night to find the location of the phone used by the suspected burglar without obtaining a warrant.202 This information lead to the suspected burglar’s arrest.203 New Jersey law does not recognize the third-party disclosure doctrine.204 Thus, the Government can only request cell site location information through a warrant based upon probable cause, unless an exception to the search warrant requirement exists.205
B. Courts Following the Fifth Circuit
One of the cases following the Fifth Circuit’s determination that a magistrate judge cannot deny a D-Order when the Government shows specific and articulable facts is United States v. Graham from Maryland. That case involved robberies of two fast food restaurants.206 When two defendants were arrested for firearm violations, the Government applied for
197. In re Application for a Court Order Authorizing AT&T to Provide Historical Cell Tower Records, 2011 WL 7092589, at *3 (V.I. Apr. 29, 2011).
198. Id. at *1. 199. Id. at *3.
200. State v. Earls, 70 A.3d 630, 632 (N.J. 2013). 201. Id.
202. Id. at 633–34. 203. Id. at 634. 204. Id. at 632. 205. Id.
a D-Order to require the defendants’ cell phone provider “to disclose . . . ‘the identification and address of cellular towers (cell site locations) related to the use of [those phones].’”207 The D-Order was granted based on “specific and articulable facts showing that there [were] reasonable grounds to believe that the records and other information sought [were] relevant and material to an ongoing criminal investigation.”208 The court concluded there is no “legitimate expectation of privacy in the historical cell site location records acquired by the government.”209 Cell phone service providers collect and store this information in the normal course of business.210 Also, the court deferred to the determination of Congress to allow the lesser standard of proof required to obtain this information.211
With the different standards of proof to obtain cell site location information throughout different jurisdictions, there is no uniformity when courts interpret the SCA and issue D-Orders or reject D-Order applications. Federal laws should be applied consistently throughout the country. Thus, several solutions are available to remedy these discrepancies in applying the SCA.
VII.PROPOSED SOLUTION
As Justice Brandeis said in his famous Olmstead dissent, “[d]iscovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”212 This epitaph is even more applicable over eighty years later. Congress is in a better position than the courts to require a consistent standard of proof for obtaining historical cell site information. When the SCA was originally written, Congress created an ambiguity between subsections (c) and (d) of 18 U.S.C. § 2703. Now, Congress should clarify these subsections and require only probable cause, i.e., a warrant, for a cell phone’s location data. Also, the third-party exception doctrine is not applicable to the digital age. As Professor Schulhofer stated, “to treat information conveyed to a trusted intermediary, under promise of confidentiality, as if it had been posted on a public billboard is to make nonsense of the Fourth Amendment.”213
In order for more transparency between cell phone service providers and their customers regarding the amount of requests from the Government, cell phone service providers can be more open about the amount of information the Government requests and the type of
207. Id. at 386. 208. Id.
209. Id. at 389. 210. Id.
211. Id.
212. Olmstead v. United States, 277 U.S. 438, 473 (1928) (Brandeis, J., dissenting). 213. SCHULHOFER, supra note 80, at 127.
information provided by them in response to those requests. In January 2014, Verizon was the first major service provider to release a transparency report regarding all the information requested by government agents.214 Verizon reported it received approximately 320,000 requests for customer information “from federal, state or local law enforcement in the United States” in 2013.215 The report further broke down those requests.216 Verizon received 164,184 subpoenas, 62,857 general orders, 6,312 pen registers or trap and trace orders, 1,496 wiretap orders, 36,696 warrants, and approximately 50,000 emergency requests.217 This data shows that more general orders (e.g., D-Orders) are used than warrants. Ironically, not much information is provided about general orders:
Most of the orders we received . . . were “general orders.” We use the term “general order” to refer to an order other than a wiretap order, warrant, or pen register or trap and trace order. We continue to see that many of these general orders require us to release the same types of basic information that could also be released pursuant to a subpoena. We do not provide law enforcement any stored content (such as text messages or email) in response to a general order.218
Location information figures were also disclosed.219 In the first half of 2014, Verizon received about 15,600 demands for location data.220 More orders were given for this information than warrants (about two-thirds were orders compared to one-third through warrants).221 Verizon also received about “2,400 warrants or court orders for ‘cell tower dumps’ . . . .”222 Verizon also noted that “[i]n the second half of 2014, [it] rejected as invalid approximately three percent of the demands [it] received.”223
If more cell phone companies provided this type of detailed information, or any information at all for that matter, customers would be more trusting of their cell phone service provider and of the government. Also, by making people aware of how their information is being used, the general public will have a better understanding of the deterioration of privacy rights. Verizon may have started a revolution for cell phone service providers’ relationship with customers.
214. Verizon’s Transparency Report for the Second Half of 2014, VERIZON.COM 1, http://transparency.verizon.com/themes/site_themes/transparency/Verizon-Transparency-Report-US.pdf (last visited Mar. 19, 2015).
215. Id. 216. Id. 217. Id. 218. Id. at 4. 219. Id. at 6. 220. Id. 221. Id. 222. Id. 223. Id. at 1.
CONCLUSION
People live their lives more publicly now than ever before. Hardly anyone is without a cell phone at any given time. If a cell phone is lost or forgotten, a person feels naked. Times have changed since 1986 when the SCA was enacted. People use more technology and live their lives more publicly. Privacy rights must change with the times. A cell phone’s location provides a great amount of information to the government. This information must be protected under the Fourth Amendment since cell phone users expect some level of privacy when using their device. Even though crime is a serious problem in this country, requiring a warrant to obtain cell site location data is not an absurd burden for the government to bear.
COLLEEN FRIES
* J.D. 2015, University of Detroit Mercy School of Law. Colleen is grateful to Professor Richard Broughton for his guidance in formulating this Note. She would also like to thank her family for their support during law school.
