Warrantless Cell Phone Tracking: The Fifth Circuit Weighs In

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.

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