JURIST Guest Columnist Patrick Corbett of the Thomas M. Cooley Law School says that the Fifth Circuit’s decision concerning cell site location information is constitutionally sound and that, for the time being, lower courts will have to work through its related privacy implications without the Supreme Court’s direct guidance…

In the case of In Re: Application of the United States of America for Historical Cell Site Data (In re: Application), the US Court of Appeals for the Fifth Circuit held, in a 2-1 opinion, that “court orders authorized by the Stored Communications Act to compel phone service providers to produce the historical cell site information of their subscribers [are not] per se unconstitutional.” Essentially, the opinion means federal law enforcement officers (at least in the Fifth Circuit) can continue to obtain historical cell site information on a showing of less than probable cause. The officers need only provide “specific and articulable facts showing there are reasonable grounds to believe” the desired information is “relevant and material to an ongoing criminal investigation” in order to get an order from a court. In so holding, the Fifth Circuit quoted from United States v. Skinner, noting that “[l]aw enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system.” The quote appears to sum up the likely motivation for In re: Application — the government interest in obtaining the information outweighs the privacy interests presented by the facts of the case. The opinion is a predictable, and arguably reasonable, decision in light of some recent Supreme Court cases and the high government interest in enabling law enforcement to pursue criminal suspects by embracing the very technology criminals often use to avoid detection.

In In re: Application, federal criminal investigative authorities sought “historical cell site information” which has been defined as follows: “Cell tower records, also known as call detail records, are the billing records cell companies use to keep track of their customers’ calls. They show the date and time of all calls made or received, the numbers called, the duration of each call, and the cell towers used to begin and end a call.” Such information has proved to be highly useful to law enforcement in a variety of cases, from “finding a missing person to tracking 911 hang-up(s) to tracking a suspect.” Some believe requiring officers to get a search warrant would “cripple” their investigations. Nevertheless, given the potentially private nature of such records, the question arises as to the level of proof law enforcement should be required to show in order to get such information.

It appears that, at least in the short run, lower courts will have to work through these issues without the Court’s direct guidance, as the Court recently denied the petition for a writ of certiorari in Skinner v. United States, a case presenting a similar issue. Nevertheless, the Fifth Circuit’s decision authorizing the government’s request for such records under 18 U.S.C. 2703(d) of the Stored Communications Act is consistent with some of the recent decisions of the Supreme Court. What existing Supreme Court cases provide some guidance?

Over the last several years, the Court has maintained a trend toward issuing decisions that find ways to permit the jury to consider the evidence in Fourth Amendment suppression cases. In Hudson v. Michigan, the Court declared that, because there are other remedies like a civil lawsuit and internal discipline of officers, suppression is not the proper remedy for a “knock and announce” violation. In Herring v. United States, the Court held “the jury should not be barred from considering all the evidence” obtained pursuant to a Fourth Amendment error — in this case, an arrest based on a warrant that wrongly appeared as active in a police department computer database — when the error “was the result of isolated negligence attenuated from the arrest.” Similarly, the Fifth Circuit in In re: Application found a way to permit the investigation involving cell tower information to proceed.

The Court has also demonstrated a desire to narrow the scope of its decisions because of the changing nature of technology. In City of Ontario, California v. Quon, in considering the Fourth Amendment rights of a government employee on a pager issued by the employer, the Court stated: “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear …. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior … A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.” Similarly, the Fifth Circuit was direct in noting its decision was a narrow one: “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 phones at the points at which the user places and terminates a call are not categorically unconstitutional.”

While Quon may suggest judicial caution in the context of technology, United States v. Jones could potentially have broad implications on the Government’s use of technology. In Jones, the Court held that law enforcement attaching a GPS device to a car constituted a search under the Fourth Amendment requiring probable cause and a warrant. A vital fact in reaching this decision: “The Government physically occupied private property for the purpose of obtaining information.” In In re: Application, the court distinguished Jones by drawing “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.” As a “third party’s voluntarily created business record,” federal law enforcement can obtain historical cell site information with a court order. Law enforcement in In re: Application did not physically occupy the private property of the suspects in order to obtain the information; as such, the opinion is consistent with Jones.

Citing Jones, however, the dissent in In re: Application pointed out that the Court is likely to be troubled by law enforcement’s access to location information generated by cell phones. In support, the dissent quoted Justice Sotomayor’s concurrence in Jones: “[In future cases] considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements[,] … it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

There is considerable support within the legal community for reconsidering this third party doctrine. The American Bar Association Criminal Justice Standards Committee recently promulgated “Law Enforcement Access to Third Party Records,” urging alternatives in lieu of the third party doctrine. In a recent law review article, Professor Stephen Henderson argues federal courts are already moving away from this doctrine. Nevertheless, unless and until the Supreme Court actually decides to reconsider the third party doctrine, it remains the law that federal courts should follow. As such, the In re: Application decision — while riddled with some troubling privacy implications — is constitutionally sound.

In the meantime, as the Fifth Circuit points out, “cell phone users [who] may reasonably want their location information to remain private” have alternatives. “[T]he recourse for these desires is in the market or in 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.” Litigators may seek to prevent the admission of cell location information using the federal rules of evidence. After all, some have called cell tower tracking a “‘junk science‘ that should never be admitted in any court for any reason.” States like Maine have passed laws requiring state law enforcement officers to obtain a search warrant (based upon probable cause) in order to retrieve cell site information. Moreover, state courts are always free to interpret their own laws in ways that provide their citizens with greater protection from searches by police than the law as set by the US Supreme Court. In State v. Earls, the New Jersey Supreme Court did just that, holding police were required to obtain a search warrant supported by probable cause in order to obtain cell site information from the defendant’s cellular service provider.

Does the Supreme Court, as Justice Scalia implies in Quon (“The-times-they-are-achangin’ is a feeble excuse for disregard of duty”), have a duty to give the lower courts some guidance? Will Jones give the Court a second chance? The prosecutors in the Jones case decided to reprosecute using cell site data and the US District Court recently denied a motion to suppress this data — so the case moves forward. Will the Court eventually reconsider — and reject — the third party doctrine? Might the Court find, in some situations, cell tower tracking as so comprehensive that it is unreasonable under the Fourth Amendment? Given the uncertainty, courts will continue to look for narrow ways to decide their cases. Meanwhile, law enforcement officers will continue to use cell site location data — as they should — to pursue the criminals.

Patrick Corbett is a Professor of Law at Thomas M. Cooley Law School in Lansing, MI, where he teaches Criminal Law, Criminal Procedure and Computer Crimes. Prior to teaching, Professor Corbett worked as a federal judicial law clerk and both as a federal and state prosecutor, all in Detroit, MI. He helped start a High Tech Crime Unit at the Michigan Attorney General’s Office, serving as Deputy Chief of that unit for over two years. In 2001, Professor Corbett began teaching at Cooley Law School. Since 2001, Professor Corbett has given over 150 presentations to a variety of groups and has written numerous articles on computer crime-related issues.

Suggested citation: Patrick Corbett, Fifth Circuit Makes Sound Decision on Cell Site Location Information, JURIST – Forum, Sep. 09, 2013, http://jurist.org/forum/2013/09/patrick-corbett-cell-tower-tracking.php.