There is a reasonable expectation of privacy in CSLI, but it is subject to exigent circumstances in a proper case. State v. Subdiaz-Osorio, 2014 WI 87, 2014 Wisc. LEXIS 502 (July 24, 2014):
[*P5] This case presents two issues for review. First,did law enforcement agents violate Subdiaz-Osorio’s Fourth Amendment rights when they procured his cell phone location information without first obtaining a court order based on probable cause? …
[*P6] The court is deeply divided on these issues as evidenced by the number of separate writings.[*P7] This opinion is the lead opinion. It will outline the legal conclusions of the writer, including a mandate that the decision of the court of appeals is affirmed. Justice Ann Walsh Bradley, Justice N. Patrick Crooks, Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman concur solely in the mandate.
[*P8] The following conclusions are my conclusions.
[*P9] First, I assume for this case, without deciding the issue, that people have a reasonable expectation of privacy in their cell phone location data and that when police track a cell phone’s location, they are conducting a search under the Fourth Amendment. I make these assumptions to avoid delivering a broad pronouncement about reasonable expectations of privacy in the rapidly developing field of wireless technology.
[*P10] Second, even though I assume there was a search in this case and recognize that police did not have a court order when they tracked Subdiaz-Osorio’s cell phone location, I conclude that police did have probable cause for a warrant and that the exigent circumstances of this case created an exception to the warrant requirement
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III. DISCUSSION
A. The Current Privacy Landscape
[*P39] This case involves a brutal killing, but the law enforcement effort to apprehend the killer has implications for citizens at large. Thus, I begin my analysis with a general discussion of privacy and citizens’ concerns about protecting personal information in an era when technology is chipping away at traditional notions of privacy.
[*P40] Privacy is a pillar of freedom. There is great value in being able to enter and withdraw from public spaces and disclose the details of our thoughts and movements at our discretion. We share pieces of ourselves with loved ones and bond over the secrets of our identities. We perfect ideas behind closed doors and reveal them to the public when they are ready. We take comfort in seclusion from the world in moments of intimacy. Privacy is not insignificant; it is not something to be taken for granted; and even as it diminishes as our world becomes more interconnected and dangerous, privacy must not become a legal fiction.
[*P41] It would be difficult to overstate the value of privacy:
Privacy is valuable because it is necessary for the proper development of the self, the establishment and control of personal identity, and the maintenance of individual dignity. Without privacy, it not only becomes harder to form valuable social relationships—relationships based on exclusivity, intimacy, and the sharing of personal information—but also to maintain a variety of social roles and identities. Privacy deserves to be protected as a right because we need it in order to live rich, fulfilling lives, lives where we can simultaneously play the role of friend, colleague, parent and citizen without having the boundaries between these different and often conflicting identities breached without our consent.
Stephen E. Henderson, Expectations of Privacy in Social Media, 31 Miss. C. L. Rev. 227, 233 (2012) (quoting Benjamin Goold, Surveillance and the Political Value of Privacy, 1 Amsterdam L. Forum 3, 3-4 (2009)). Thus, privacy serves more than the individual; it is an integral component of a well-ordered society.
[*P42] The privacy landscape is shifting as we embrace new technologies. Electronic devices afford us great convenience and efficiency, but unless our law keeps pace with our technology, we will pay for the benefit of our gadgets in the currency of privacy. As we incorporate more of our lives into our smartphones and tablets, we are not merely using technology as a tool for societal and professional navigation; we are digitizing our identities. Thus, efforts to access the information in our electronic devices invade and expose the marrow of our individuality.
[*P43] As Samuel Warren and Louis Brandeis noted presciently well over a century ago, “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right ‘to be let alone.'” Perhaps in this age of technology, that right is not as strong as it once was, but it should be our goal to quell its attenuation insofar as it is safe and reasonable to do so. It used to be that “the greatest protections of privacy were neither constitutional nor statutory, but practical.” United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 963 (2012) (Alito, J., concurring). Today, in an environment of rapid technological advancement that allows tracking via electronic data, practical limitations on surveillance are quickly dissipating. Technology, it seems, has been irreversibly incorporated into our modern lives. The question we face is whether privacy must be eviscerated to accommodate innovation.
[*P44] I believe there is room in the law for both, as well as security. Technology brings with it the danger of criminal opportunism. Thus, at times privacy must make room for security, for privacy is worth little if it is overshadowed by fear. There will be times at which privacy must yield to security in order to thwart crimes, from identity theft to terrorism. The Fourth Amendment often conjures the image of a scale on which we balance the needs of law enforcement and the rights of individuals. Technological innovation does not change the need for balance, but it makes the act of balancing difficult. It is no small task to afford law enforcement officers and government agencies the leeway they need to keep citizens safe while ensuring that citizens retain a reasonable degree of privacy.
[*P45] The balancing is especially important as citizens pay close attention to their privacy rights in the context of wireless technology. As awareness of our dwindling privacy increases, surveys consistently reveal that people are apprehensive about losing privacy with regard to their personal information. As cell site location and GPS technology become ubiquitous, Americans are adding cell phone location information to the list of concerns. This concern makes sense as an estimated 335.65 million wireless subscriber connections existed in the United States at the end of 2013. The court is mindful of the pervasiveness of wireless technology and of our citizens’ concern for their privacy as we analyze the constitutional protections against unreasonable government intrusions.
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4. The Objective Reasonableness of the Expectation of Privacy in Cell Phone Location Information
[*P65] Despite its apparent simplicity, the Katz test’s second prong—whether society is prepared to recognize an expectation of privacy as reasonable—has been the subject of much confusion, debate, and analysis, and it is far from an easy touchstone to apply. See, e.g., California v. Greenwood, 486 U.S. 35, 46-49 (1988) (Brennan, J., dissenting) (disagreeing with the majority about whether respondents had a reasonable expectation of privacy in their trash); Smith v. Maryland, 442 U.S. 735, 747 (1979) (Stewart, J., dissenting) (disagreeing with the majority and suggesting that people have a reasonable expectation of privacy in the phone numbers that they dial).
[*P66] Although it is difficult to apply, the interpretation of what society is prepared to recognize as a “reasonable expectation of privacy” is an important part of the analysis under Katz. See Florida v. Riley, 488 U.S. 445, 451-52 (1989). In Riley, the Court considered whether police surveillance of a greenhouse from a helicopter 400 feet in the air was a search that required a warrant. Id. at 447-48. A plurality of the Court said that because anyone could have flown a helicopter and observed the top of the greenhouse without violating the law, it was not reasonable for the respondent to expect privacy when he left the top of the greenhouse partially open. Id. at 450-51. Justice O’Connor’s concurrence tempered Riley’s plurality by emphasizing that the search was not permissible simply because the helicopter complied with FAA regulations or because any citizen could have conducted the same search. Id. at 454-55 (O’Connor, J., concurring). Instead, Justice O’Connor suggested that “consistent with Katz, we must ask whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity” to determine if the search was “one that society is prepared to recognize as ‘reasonable.'” Id. at 454 (quoting Katz, 389 U.S. at 361).
[*P67] In accordance with Justice O’Connor’s Riley concurrence, the Court later determined that it was presumptively unreasonable for the government to use technology that was not in general public use to conduct a warrantless search that would normally require a physical intrusion of the home subject to the search. Kyllo v. United States, 533 U.S. 27, 40 (2001). In Kyllo, the government’s use of thermal imaging to determine whether the defendant’s house contained high-intensity lamps used to grow marijuana constituted a search under the Fourth Amendment. Id. at 29, 40. The Court concluded that because the government used a thermal imaging device not in general public use to see details inside a house that would normally require a physical intrusion, the warrantless surveillance was an improper search. Id. at 40. Kyllo demonstrates that surveillance aided by technology can rise to the level of an impermissible search even absent a physical intrusion.
[*P68] Because the concept of an objective reasonable expectation of privacy is elusive, this opinion makes no definitive pronouncement as to whether society is prepared to recognize as reasonable an expectation of privacy in cell phone location data. Given the widespread apprehension of government intrusion in citizens’ electronic personal information, we cannot say that an expectation of privacy in cell phone location data is unreasonable even if it were true that the public is generally aware that cell phone tracking is possible. On the other hand, cell phone location tracking might be better understood and more prevalent than, say, thermal imaging. I need not decide the issue of an objective reasonable expectation of privacy on these facts to decide this case.
D. Exigent Circumstances
[*P69] Irrespective of whether Subdiaz-Osorio had both a subjective and objective reasonable expectation of privacy in his cell phone location data, and irrespective of whether obtaining that data was a search without a warrant under the Fourth Amendment, I conclude that the tracking of Subdiaz-Osorio’s cell phone location fell within the exigent circumstances exception to the warrant requirement. Consequently, the search did not violate Subdiaz-Osorio’s Fourth Amendment rights.
