D.Conn.: As much as everybody hates the “third party doctrine,” it’s still good law, and CSLI accessible by subpoena

The government obtained 22 days of defendant’s CSLI information by subpoena and not search warrant, and, as much as the third party doctrine is despised by the commentators, it remains good law today. United States v. Chavez, 2016 U.S. Dist. LEXIS 22312 (D.Conn. Feb. 24, 2016):

The third-party doctrine has been subject to tsunamis of criticism.1 But it doubtlessly remains good law today. See, e.g., Am. Civ. Liberties Union v. Clapper, 785 F.3d 787, 822 (2d Cir. 2015). The Second Circuit has yet to address whether the Fourth Amendment applies to the acquisition of cell-site location information, but it is no surprise in light of Miller and Smith that other federal appellate courts have concluded that the Fourth Amendment’s warrant and probable cause requirements do not apply when the Government acquires cell-site location information from a telecommunications provider. See United States v. Davis, 785 F.3d 498, 506-17 (11th Cir. 2015) (en banc); In re United States for Historical Cell Site Data, 724 F.3d 600, 611-13 (5th Cir. 2013); 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, 313 (3d Cir. 2010); see also In re Application of the U.S.A. for an Order Pursuant to 18 U.S.C. 2703(c), 2703(d) Directing AT & T, Sprint/Nextel, T-Mobile, Metro PCS, Verizon Wireless, 42 F. Supp. 3d 511, 517 (S.D.N.Y. 2014) (collecting more cases).2

1. “The third-party doctrine is the Fourth Amendment rule scholars love to hate” and has been condemned as no less than “the Lochner of search and seizure law, widely criticized as profoundly misguided.” Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009). See also Jane Bambauer, Other People’s Papers, 94 Tex. L. Rev. 205, 262 (2015) (“the third-party doctrine has become the Fourth Amendment’s supervillain” and “it puts no constitutional limits on dragnet data collection”); Stephen E. Henderson, Beyond the (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, and the Rest of Us Too, 34 Pepp. L. Rev. 975 (2007) (noting criticism of the third-party doctrine and describing alternative approaches adopted by some states for privacy protection).

2. A divided panel of the Fourth Circuit ruled to the contrary, but the panel’s opinion has been withdrawn with the granting of the Government’s petition for rehearing en banc. See United States v. Graham, 796 F.3d 332, 344-45 (4th Cir.), reh’g en banc granted, 624 F. App’x 75 (4th Cir. 2015).

Defendant has not advanced a convincing reason to distinguish the Supreme Court’s rulings in Miller and Smith—that is, to show why the Government’s obtaining of cell-site location information from a telephone company is materially different or more intrusive than the Government’s obtaining of financial records from a customer’s bank (Miller) or telephone dialing and toll records from a telephone company (Smith). Indeed, as the Government noted at oral argument, the cell-site location information—unlike a GPS tracking device—does not actually “pinpoint” the location of a telephone’s user. It does no more than identify that the telephone at issue—while in use—is within certain range in a proximate direction (within a 120-degree “wedge” direction) from a specific cellular telephone tower.3

3. Accordingly, the record here does not support conclusions undertaken by another district court that cell-site location information is akin to GPS tracking. See In re Application for Tel. Info. Needed for a Criminal Investigation, 119 F. Supp. 3d 1011, 2015 WL 4594558 at *9 (N.D. Cal. 2015).

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