A search warrant is not required for cell site location information. Jones is inapplicable, and the third party doctrine hasn’t changed. United States v. Lang, 2015 U.S. Dist. LEXIS 7553 (N.D. Ill. January 23, 2015):
A. Fourth Amendment
… Thus, if Defendant Lang has a reasonable expectation of privacy in his historical cell site records, obtaining such records will constitute a search as defined by the Fourth Amendment and the government must obtain a search warrant to acquire them.
Although the Seventh Circuit has not explicitly addressed the issue of whether historical cell site information raises Fourth Amendment issues thus requiring a search warrant, it recently noted that it has “not found any federal appellate decision accepting [the] premise that obtaining cell-site data from telecommunications companies—under any factual scenario—raises a concern under the Fourth Amendment.” United States v. Thousand, 558 Fed.Appx. 666, 670 (7th Cir. 2014). Indeed, the majority of courts2 that have addressed a Fourth Amendment challenge to obtaining cell site information have analyzed the request under the third party/business records framework as articulated by the Supreme Court in United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) and Smith v. Maryland, 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). See In re U.S. for Historical Cell Site Data, 724 F.3d 600, 612-15 (5th Cir. 2013); United States v. Giddins, No. WDQ-14-0116, __ F.Supp.3d __, 2014 WL 4955472, at *8 (D.Md. 2014); United States v. Banks, __ F.3d __, 2014 WL 4594197, at *3-4 (D. Kan. Sept. 15, 2014); United States v. Graham, 846 F.Supp.2d 384, 389-390 (D.Md. 2012).
In Miller, the Supreme Court held that a defendant had no expectation of privacy in his bank records possessed by the financial institution because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Miller, 425 U.S. at 443. Subsequently, in Smith, the Supreme Court addressed whether the warrantless installation and use of a pen register that recorded the numbers dialed from Smith’s phone violated the Fourth Amendment. Smith, 442 U.S. at 736. The Court held that it did not because Smith had no reasonable expectation of privacy in the numbers dialed because he turned them over to a third party, namely the phone company. “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” Smith, 442 U.S. at 744.
Similar to Miller and Smith, Defendant Lang has no expectation of privacy in his historical cell site records because he voluntarily conveyed this information to his service provider. As the Fifth Circuit said in In re U.S. for Historical Cell Site Data:
[C]ell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use. The Government does not require service providers to record this information or store it. The providers control what they record and how long these records are retained. The Government has neither required nor persuaded providers to keep historical cell site records. In the case of such historical cell site information, the Government merely comes in after the fact and asks a provider to turn over records the provider has already created.
Moreover, these are the providers’ own records of transactions to which it is a party. The caller is not conveying location information to anyone other than his service provider. He is sending information so that the provider can perform the service for which he pays to connect his call. And the historical cell site information reveals his location information for addressing purposes, not the contents of his calls. The provider uses this data to properly route his call, while the person he is calling does not receive this information.
In re U.S. for Historical Cell Site Data, 724 F.3d at 611-12 (internal quotation omitted).
The Court agrees with this reasoning and follows the numerous courts that have held that an individual does not have a legitimate expectation of privacy in historical cell site information and thus the protections of the Fourth Amendment do not attach to it. See United States v. Guerrero, 768 F.3d 351, 360-61 (5th Cir. 2014) (noting that historical cell site data is not governed by the Fourth Amendment); Rogers, __ F.3d __, 2014 WL 5152543, at *4 (“Historic electronic location records fit squarely into the type of records the Supreme Court contemplated in Smith.”). See also United States v. Shah, No. 5:13-CR-328, 2015 WL 72118, at *7 (E.D.N.C. Jan. 6, 2015) (finding that historical cell site information “is not protected by the Fourth Amendment”); United States v. Giddins, __ F.Supp.3d __, 2014 WL 4955472, at *10 (D.Md. Sept. 30, 2014) (the defendant’s “Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under 2703(d)”); United States v. Banks, No. 13-CR-40060-DDC, __ F.Supp.3d __, 2014 WL 4594197, at *4 (D. Kan. Sept. 15, 2014) (“Because the defendants voluntarily conveyed CSLI to service providers as part of a business transaction, the statutory standard in 2703(d) governs and Fourth Amendment protections do not apply to their [cell site data]”). Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir. 2010) (reversing magistrate judge’s denial of an order under Section 2703(d) yet noting that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information”).
B. Jones Does Not Apply to the Facts Here
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), does not provide otherwise. In Jones, the Supreme Court held that attaching a GPS tracking device to a vehicle and subsequently monitoring the movement of the vehicle constituted a search under the Fourth Amendment. The Supreme Court found that the government had “physically occupied private property for the purpose of obtaining information” when it “trespassorily inserted the information-gathering device” onto the vehicle. Id. at 950, 952. Jones did not rely upon the Smith third party doctrine, “let alone purport to desert or limit it.” United States v. Wheelock, 772 F.3d 825, 829 (8th Cir. 2014). Instead, it relied on the government’s trespass into the vehicle where the defendant had an expectation of privacy. While one concurring opinion noted that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” because of the “digital age,” the concurrence did not abrogate the third party doctrine. Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring). See also Guerrero, 768 F.3d at 360 (noting that Justice Sotomayor has expressed some skepticism, but Smith remains the law).
