On Friday, the Supreme Court issued a long-awaited opinion in Carpenter v. United States. The Court held that when law enforcement obtains long-term cell site location information from a suspect’s service provider, it conducts a Fourth Amendment search that normally requires a warrant. Although the majority opinion states that it “is a narrow one,” the dissenting Justices and some scholars see it as a seismic shift that may have many aftershocks. I’ll summarize the case and then use former Secretary of Defense Donald Rumsfeld’s famous approach to address the “known knowns,” the “known unknowns,” and the “unknown unknowns” after Carpenter. Continue reading
Tag Archives: cell phone tracking
The Court of Appeals of North Carolina recently decided a case about police obtaining real-time location information from a suspect’s cellular service provider. The case does not address the principal controversy concerning such information. Nonetheless, it provides a good refresher on the issue and marks a good time for an update on the national controversy about this issue. Continue reading →
In June, the United States Supreme Court granted certiorari in Carpenter v. United States (No. 16-402) (docket here), a case involving the intersection of technology and the Fourth Amendment and application of the third-party doctrine to digital data. In this post I’ll preview that case. Continue reading →
It’s not Thursday, but I’m going to throw it back a few years to 2014. Like the rest of the nerds I know, I became obsessed that year with the podcast Serial. The first season of that podcast chronicled the prosecution of Adnan Syed for the 1999 murder of his ex-girlfriend, Hae Min Lee. Host Sarah Koenig meticulously sifted through the evidence and conducted goodness-knows-how-many interviews with everyone connected to the case, including numerous recorded interviews with Syed, who is serving a life sentence in a Maryland prison. Syed claims that he did not kill Lee, whose body was discovered six weeks after she disappeared buried in a Baltimore park. Koenig spends the first several episodes of the podcast describing inconsistencies in witness’s accounts of the day Lee disappeared—inconsistencies that raise doubts about Syed’s guilt. But in episode five, Koenig, with the help of her producer, analyzes the evidence that the State offered regarding which cell towers serviced calls to Syed’s phone during the time that one of Syed’s friends claimed Syed was burying Lee’s body. The producer concludes:
“I think they were probably in [the park] . . . Because . . . the amount of luck that you would have to have to make up a story like that and then have the cell phone records corroborate those key points, I just don’t think that that’s possible.”
Last week, the court of appeals decided State v. Perry. It’s the appellate division’s first foray into cell site location information and a case that raises questions about the status of the exclusionary rule in North Carolina. Continue reading →
On Tuesday, the Eleventh Circuit ruled, en banc, that law enforcement may obtain historical cell site location information without a search warrant, using a court order based on less than probable cause. There’s a controversy over what legal standard should govern law enforcement access to location information, and the Eleventh Circuit’s ruling is likely to be influential in the debate. This post explains the issue and puts the new decision in context. Continue reading →
This weekend, the Charlotte Observer ran this article, entitled Charlotte Police Investigators Secretly Track Cellphones. The article concerns the use of so-called stingrays, also known as IMSI catchers or cell site simulators. They are machines that simulate cell towers and connect with the cellular telephones located nearby. Officers frequently use them to triangulate the location of a suspect – or more precisely, the location of a suspect’s phone. There’s a controversy about the legal status of these devices, which I’ll summarize in this post. Continue reading →
I wrote here about how law enforcement officers may obtain historical information about the location of a suspect’s cellular phone. There have been several developments in the law since then, including earlier this week when the Fifth Circuit rendered its decision in In re Application of the United States of America for Historical Cell Site Data.
Summary of Prior Law. Law enforcement usually seeks historical cell site location information under the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA generally prohibits providers of “electronic communications services,” such as cellular telecommunications companies, from disclosing subscribers’ records or other information absent appropriate legal authority. 18 U.S.C. § 2702(a)(3). What legal process is necessary? Under 18 U.S.C. § 2703(c)(1), law enforcement may obtain a “record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)” by obtaining a search warrant or by obtaining a court order. Officers tend to prefer to seek a court order, because the standard for issuance is lower. To obtain a court order, the applicant need only present “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). This showing is less than the probable cause required for a search warrant.
Most courts have found no Fourth Amendment problem with this statutory scheme because the subscriber voluntarily conveys his or her location to the cellular service provider by choosing to have a cellular phone and to turn the phone on. Cf. Smith v. Maryland, 442 U.S. 735 (1979) (no expectation of privacy in telephone numbers dialed, because the numbers are conveyed voluntarily to the phone company). On this view, by requiring a court order, the SCA actually provides more protection than the Constitution requires.
Origins of the Fifth Circuit Case. The Fifth Circuit case began when “the United States filed three applications under § 2703(d) of the Stored Communications Act . . . seeking evidence relevant to three separate criminal investigations. Each application requested a court order to compel the cell phone service provider for a particular cell phone to produce sixty days of historical cell site data and other subscriber information for that phone.” The applications were submitted to a federal magistrate judge, who “granted the request for subscriber information but denied the request for the historical cell site data,” even though the Government met the “specific and articulable facts” standard. The magistrate judge concluded – contrary to the conventional analysis set forth above – that cell site location information was subject to a reasonable expectation of privacy, and that “warrantless disclosure of cell site data violates the Fourth Amendment.” The district court judge agreed, and the Government appealed.
The Fifth Circuit’s Ruling. In a 2-1 decision, the court ruled for the Government. The majority endorsed the conventional view of the Fourth Amendment issue. It stated that subscribers are aware that their cell phones are communicating with cell towers, and that service providers may record that information. When the Government “merely comes in after the fact and asks a provider to turn over records the provider has already created,” it is obtaining the provider’s records, not the subscriber’s, and is obtaining information that the subscriber has voluntarily conveyed to the provider. Under Smith and other “business records” cases, this does not intrude on the subscriber’s reasonable expectation of privacy.
National Context and Impact on North Carolina. Whether law enforcement access to location information collected by cellular service providers implicates the Fourth Amendment is a hot question right now, fueled in part by the Supreme Court’s ruling on the related issue of GPS tracking in United States v. Jones, 556 U.S. __ (2012) (holding, as I discussed here, that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’”). For example, the New Jersey Supreme Court just ruled unanimously in State v. Earls, __ A.3d __, 2013 WL 3744221 (July 18, 2013), that the New Jersey Constitution generally requires a warrant before obtaining cell site location information. The Third Circuit ruled a few years ago that judicial officials may, but are not required to, require a showing of full probable cause rather than merely specific and articulable facts before issuing an order for disclosure of historical cell site location information. In re Application of the United States, 620 F.3d 304 (3d Cir. 2010). And several similar cases are pending in other federal appellate courts, including the Fourth Circuit. (Readers interested in the Fourth Circuit case can check out this brief, signed in part by IDS Director Tom Maher in his capacity as Vice Chair of the NACDL’s Fourth Circuit Amicus Committee.)
There’s no case on point from our appellate division. A North Carolina judge considering an application for cell site location information is bound by none of the above cases, but may be persuaded by any of them. Unless and until the United States Supreme Court or a North Carolina appellate court rules on these issues, they remain open questions. Because there is at least some uncertainty about the Fourth Amendment issue, a cautious officer may prefer to use a full probable cause warrant or order rather than a specific and articulable facts order when possible.
Further Reading. The New York Times has a story about the Fifth Circuit case here. Leading network surveillance scholar Orin Kerr, who was involved in the case as an amicus, analyzes the opinion here.
I’ve had several questions lately about the authority of law enforcement to track a suspect by obtaining information about contacts between the suspect’s cellular telephone and cellular towers. I’m also going to be teaching about some related issues in the near future. So I’ve prepared a short summary of the law in this area, which I’m making available here as a PDF. I’ve watermarked the document “draft” because I reserve the right to tinker with it some more, so if you read it and have comments, criticisms, or suggestions, please let me know. That said, I believe the summary is accurate as is. I hope it’s helpful.