Unintended legal research almost always begins with my finding an article in the New York Times that peaks my interest and leads me into doing some structured WestLaw research. That happened on July 30th, as I was looking at the New York Times app on my iPad and saw an article entitled “Warrantless Cellphone Tracking Is Upheld” by Somini Sengupta that was to appear in the next morning’s edition of the Times. The article began with these two lead paragraphs:
In a significant victory for law enforcement, a federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant.
The closely watched case, in the Fifth Circuit of the United States Court of Appeals in Texas, is the first ruling that squarely addresses the constitutionality of warrantless searches of historical location data stored by cell-phone service providers. Ruling 2 to 1, the court said a warrantless search was “not per se unconstitutional’ because location data was “clearly a business record’ and therefore not protected by the Fourth Amendment [emphasis added].
Curiously, the article did not refer to the style of the case and WestLaw did not have it in its database until August 1st. Then, I found In re Application of the United States of America for Historical Cell Site Data, 5th Cir. ___ F.3d ___; 2013 WL 3914484 (5th Cir.) [Panel: Circuit Judges Reavley, Dennis (dissented), and Clement (authored the opinion)].
Judge Clement’s opinion—beginning with her recitation of the facts—reads, in part, as follows:
[The Three Applications]
In early October 2010, the United States filed three applications under § 2703(d) of the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701–2712, 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 Government requested the same cell site data in each application: “the antenna tower and sector to which the cell phone sends its signal.” It requested this information for both the times when the phone sent a signal to a tower to obtain service for a call and the period when the phone was in an idle state. In re Application of the United States for Historical Cell Site Data, 747 F.Supp.2d 827, 829 (S.D.Tex.2010).
[In the Magistrate Judge’s Court]
For each application, the magistrate judge granted the request for subscriber information but denied the request for the historical cell site data, despite finding that the Government’s showing met the “specific and articulable facts” standard set by the SCA for granting an order to compel the cell site data. Shortly thereafter, the magistrate judge invited the Government to submit a brief justifying the cell site data applications. Four days after the Government submitted its brief, the magistrate judge issued a written opinion taking judicial notice of a host of facts about cell phone technology, primarily derived from the testimony of a computer science professor at a congressional hearing, but also including information from published studies and reports and service provider privacy policies. He concluded his opinion by declaring that, based on these facts viewed in light of Supreme Court precedent, “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment.” Id. at 846.
[In the District Court]
The Government filed objections with the district court to the magistrate judge’s ruling on the constitutionality of the SCA and his judicial notice of facts. Although there was no party adverse to the Government’s ex parte application, the ACLU and Electronic Frontier Foundation (“EFF”), among others, participated as amici curiae. As part of its submissions, the Government provided the court with additional evidence in the form of an affidavit from one of the service providers detailing its cell site records. After the parties submitted their briefs, the district judge issued a single-page order. He concluded:
When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause. The records would show the date, time called, number, and location of the telephone when the call was made. These data are constitutionally protected from this intrusion. The standard under the Stored Communications Act is below that required by the Constitution.
[The Government and the Amici]
The Government appealed once again, and the ACLU and EFF, along with Professor Orin Kerr and others, requested and were granted leave to participate as amici.
***
[The ACLU’s and the Government’s Analyses]
The Government and the ACLU focus their analysis of the constitutionality of the SCA as applied to historical cell site data on distinct questions. The ACLU focuses on what information cell site data reveals—location information—and proceeds to analyze the § 2703(d) orders under the Supreme Court’s precedents on tracking devices. In contrast, the Government focuses on who is gathering the data—private cell service providers, not government officers—and analyzes the provision under the Court’s business records cases.
[The ACLU’s Focus]
The ACLU contends that individuals have a reasonable expectation of privacy in their location information when they are tracked in a space, like the home, that is traditionally protected or when they are tracked for a longer period of time and in greater detail than society would expect.
***
The ACLU points out that individuals are only in vehicles for discrete periods, but most people carry cell phones on their person at all times, making the tracking more detailed and invasive. The Government responds that cell site data are only collected when a call is made, which is a discrete event, just like a car ride.
***
[The Government’s Focus]
The Government recognizes that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351; see also id. at 350–51 (“[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” [emphasis added]).
Therefore, the Government, when determining whether an intrusion constitutes a search or seizure, draws a line 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. Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a § 2703(d) order, just as it can subpoena other records of a private entity.
***
[The Importance of Who Is Doing the Recording]
This question of who is recording an individual’s information initially is key because:
[T]he individual must occasionally transact business with other people. When he does so, he leaves behind, as evidence of his activity, the records and recollections of others. He cannot expect that these activities are his private affair. To the extent an individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections, and, if the Government is subsequently called upon to investigate his activities for possible violations of the law, it is free to seek out these third parties, to inspect their records, and to probe their recollections for evidence.
Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1043 (D.C.Cir.1978).
***
[The ACLU’s Expectation-of-Privacy Argument]
The ACLU argues that advances in technology have changed society’s reasonable expectations of privacy in information exposed to third parties. See Jones, 132 S.Ct. 963–64 (Alito, J., concurring in the judgment) (“In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. . . . Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.”); see also id. at 957 (Sotomayor, J., concurring).
[A Legislature Body Can Balance Privacy & Public Safety Concerns]
We agree that technological changes can alter societal expectations of privacy. See id. at 962 (Alito, J., concurring) (“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.”). At the same time, “[l]aw enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system.” Skinner, 690 F.3d at 778 (citing United States v. Knotts, 460 U.S. 276, 284, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)). Therefore, “[i]n 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.” Jones, 132 S.Ct. at 964 (Alito, J., concurring in the judgment).
[The SCA Is a Legislative Solution]
Congress has crafted such a legislative solution in the SCA. The statute conforms to existing Supreme Court Fourth Amendment precedent. This precedent, as it now stands, does not recognize a situation where a conventional order for a third party’s voluntarily created business records transforms into a Fourth Amendment search or seizure when the records cover more than some specified time period or shed light on a target’s activities in an area traditionally protected from governmental intrusion. We decline to create a new rule to hold that Congress’s balancing of privacy and safety is unconstitutional.
We understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags, Greenwood, 486 U.S. at 40–41, or the view of their property from 400 feet above the ground, Florida v. Riley, 488 U.S. 445, 451, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.
[The Court’s Decision Is Narrow in Its Scope]
Recognizing that technology is changing rapidly, we decide only the narrow issue before us. Section 2703(d) orders to obtain historical cell site information for specified cell phones at the points at which the user places and terminates a call are not categorically unconstitutional. We do not address orders requesting data from all phones that use a tower during a particular interval, orders requesting cell site information for the recipient of a call from the cell phone specified in the order, or orders requesting location information for the duration of the calls or when the phone is idle (assuming the data are available for these periods). Nor do we address situations where the Government surreptitiously installs spyware on a target’s phone or otherwise hijacks the phone’s GPS, with or without the service provider’s help.
[Cell Site Data Are Business Records]
Cell site data are business records and should be analyzed under that line of Supreme Court precedent.
[The Courts Below Applied the Wrong Legal Standard]
Because the magistrate judge and district court treated the data as tracking information, they applied the wrong legal standard. Using the proper framework, the SCA’s authorization of § 2703(d) orders for historical cell site information if an application meets the lesser “specific and articulable facts” standard, rather than the Fourth Amendment probable cause standard, is not per se unconstitutional. Moreover, as long as the Government meets the statutory requirements, the SCA does not give the magistrate judge discretion to deny the Government’s application for such an order.
[The Conclusion]
Therefore, we VACATE district court’s order and REMAND with instructions to grant the Government’s applications.
My Thoughts
- This is a fun case. The arguments of the amici are well set out and are worth reading. Professor Kerr suggested that the court should address whether this case is ripe and whether 28 U.S.C. § 1291 gives the court appellate jurisdiction over it.
- This is the first case that I can remember in which a party has appealed what a court had taken judicial notice of. It is understandable, though, that the Government would have had this as an appellate issue.
- Is it likely there will be an appeal to the Supreme Court? Mr. Sengupta’s conclusion about this question is probably right on target:
The Supreme Court has yet to weigh in on whether cellphone location data is protected by the Constitution. The Texas case is not expected to go to the Supreme Court because it is “ex parte,’ or filed by only one party—in this case, the government.
