S.D.N.Y.: Gov’t required to limit scope of application for location data

A cell phone tower dump of cell site location data on phones is not subject to a reasonable expectation of privacy because the system works by keeping track of location all the time and the customers have to know it. [They don’t.] As a matter of discretion, however, the court directs the government to limit the information sought because there still is some limited interest in the information: “I will, however, require the Government to submit an amended application that (1) provides more specific justification for the time period for which the records will be gathered and (2) outlines a protocol to address how the Government will handle the private information of innocent third-parties whose data is retrieved.” In the Matter of the Application of the United States of America for an Order Pursuant to 18 U.S.C. §§ 2703(c) and 2703(d) Directing AT&T, Sprint/Nextel, T-Mobile, Metro PCS and Verizon Wireless to Disclose Cell Tower Log Information, 2014 U.S. Dist. LEXIS 76155 (S.D. N.Y. May 30, 2014):

4. Discretion

Finally, the ACLU argues that, even if the SCA and the Constitution permit issuance of the requested order on a less stringent showing than probable cause, it is within my discretion to require that the Government meet the higher standard. (Wessler 5/20/14 Letter at 10-12). I agree that a judge has such discretion.

The operative statutory language states that “a court order for disclosure … may be issued by any court that is a court of competent jurisdiction and shall issue only if” the standard is met. 18 U.S.C. § 2703(d). The Third Circuit has observed that the phrase “may be issued” is “the language of permission, rather than mandate.” In re Third Circuit Application, 620 F.3d at 315. Additionally, the direction that an order “shall issue only if” the standard is met “describe[s] a necessary condition, not a sufficient condition.” Id. at 316 (internal quotation marks omitted). But see In re Fifth Circuit Application, 724 F.3d at 606-08 (rejecting Third Circuit’s interpretation). If Congress meant otherwise, it could have excised the word “only” from the statute; however, “the statute does contain the word ‘only’ and neither [I] nor the Government is free to rewrite it.” In re Third Circuit Application, 620 F.3d at 315.

Under the voluntary disclosure doctrine, an individual’s privacy interest in shared information is attenuated but not necessarily eviscerated altogether. See, e.g., Smith, 442 U.S. 741 (voluntary disclosure doctrine does not extend to contents of communications). Certain searches by the Government of information that is voluntarily but selectively disclosed may be so invasive that it would be prudent to require a showing of probable cause. With emerging and as-yet-unknown technologies, such searches are likely to become easier, cheaper, and more prevalent; it may, then, be time to scrutinize the voluntary disclosure doctrine more closely. See Jones, __ U.S. at ___, 132 S. Ct. at 957 (Sotomayor, J. concurring) (“More 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.”).

Nevertheless, I will not require a warrant here because the information voluntarily disclosed — the telephone numbers associated with communications in a general location — does not implicate privacy interests to the same degree as, for example, the content of those communications. I will, however, require the Government to submit an amended application that (1) provides more specific justification for the time period for which the records will be gathered and (2) outlines a protocol to address how the Government will handle the private information of innocent third-parties whose data is retrieved. See In re S.D. Tex. Application, 930 F. Supp. 2d at 702 (“[I]n order to receive such data, the Government at a minimum should have a protocol to address how to handle this sensitive private information.”); see also In the Matters of the Search of Cellular Telephone Towers, 945 F. Supp 2d 769, 771 (S.D. Tex. 2013) (issuing warrant for cell tower records but requiring, among other things, that “any and all original records and copies … determined not to be relevant to the … investigation” be returned to cell service providers).

Conclusion

The Government is directed to submit, within seven days of the date of this order, an amended application that (1) re-evaluates and justifies the time period for which the cell tower records are requested and (2) provides a plan to address the protection of private information of innocent third-parties whose data is disclosed to the Government. If that information satisfies me that the privacy rights of subscribers are adequately protected, the requested order will issue.