CSLI is not just ordinary third party records, and they have Fourth Amendment protection without a warrant. CSLI is collected surreptitiously while bank (Miller) and telephone tolls calls (Smith) are provided willingly and knowingly. Moreover, CSLI is far more intrusive than other third party information. Zanders v. State, 2016 Ind. App. LEXIS 282 (Aug. 4, 2016):
B. Third Party Records
P25 However, the State points out that in subsequently applying Katz’s tests, the Supreme Court held—in both United States v. Miller and Smith v. Maryland—that individuals have no reasonable expectation of privacy in certain business records owned and maintained by a third party business. In Miller, the government used defective subpoenas to obtain Miller’s financial records from his bank. United States v. Miller, 425 U.S. 435, 437-38, 96 S.Ct. 1619, 1621, 48 L.Ed.2d 71 (1976). Faced with Miller’s claim that the government violated his privacy interests in the contents of the bank records, the Court determined that because such documents “contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” the depositor lacks “any legitimate expectation of privacy” in this information. Id. at 442, 96 S.Ct. 1619. “[I]n revealing his affairs to another,” Miller assumed the risk “that the information [would] be conveyed by that person to the government.” Id. at 443, 96 S.Ct. 1619.
P26 Likewise, in Smith, a telephone company, at the request of the police, utilized a pen register device to record the numbers dialed from Smith’s home phone. Smith v. Maryland, 442 U.S. 735, 737, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Court determined that people generally understand that they must communicate the numbers they dial to the phone company and that the phone company has facilities for recording and storing this information permanently. Id. at 742, 99 S.Ct. 2577. Even if Smith had an actual expectation of privacy in the numbers he dialed, this would not be a “legitimate” expectation because he “voluntarily conveyed” the numerical information to the phone company and “exposed” the information to the company’s recording and storage equipment. Id. at 744, 99 S.Ct. 2577. In so doing, Smith “assumed the risk” that the company would disclose the information to law enforcement. Id.
P27 Contrary to the State’s claim, Miller, Smith, and its progeny do not categorically exclude third-party records from Fourth Amendment protection. Rather, our Supreme Court merely held that a person can claim no legitimate expectation of privacy in information voluntarily conveyed to a third party. It is the act of voluntary conveyance—not the mere fact that the information winds up in the third party’s records—that demonstrates an assumption of risk of disclosure and therefore the lack of any reasonable expectation of privacy. We decline to apply the third-party doctrine in the present case because a cell phone user does not convey historical location data to his provider at all—voluntarily or otherwise—and therefore does not assume any risk of disclosure to law enforcement.
P28 Unlike the bank records in Miller or the phone numbers dialed in Smith, cell-site or location data is neither tangible nor visible to a cell phone user. A cell phone user is not required to affirmatively enter his location when making a call or sending a message. Such information is rather “quietly and automatically calculated by the network, without unusual or overt intervention that might be detected by the target user.” United States v. Wheeler, F.Supp. 3d (E.D. Wisc. March 14, 2016) (quoting In re Application of U.S. for Historical Cell Site Data, 747 F.Supp.2d 827, 833 (S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir. 2013)). Cell phone use is not only ubiquitous in our society today but, at least for an increasing portion of our society, it has become essential for full cultural and economic participation. See Riley v. California, 134 S.Ct. 2473, 2484, 189 L.Ed.430 (2014) (“[M]odern cell phones … are now such a pervasive and insistent [*22] part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”).
P29 A cell phone user’s understanding of how cellular networks generally function is beside the point. The more pertinent question is whether a user is generally aware of what specific cell-sites are utilized when their cell phones connect to a cellular network. It is the specificity of the historical location data that allows police officers to track cell phone users. While the cell phone was not originally conceived as a tracking device, law enforcement has effectively converted it to that purpose by monitoring cell-site data. As with a tracking device, this process is usually surreptitious and unknown to the phone user who—with the advent of the smart phone’s tracking capabilities—may not even be on the phone. The technique was described in United States v. Forest, 355 F.3d 942, 947 (6th Cir. 2004), where DEA agents lost visual contact with two individuals under wiretap surveillance for cocaine trafficking. In order to reestablish visual contact, a DEA agent called the suspect’s cellular phone (without allowing it to ring) several times that day and used a provider’s computer data to determine which transmission towers were being hit by the phone. Id. This cell-site data revealed the general location of the suspect. Id. In practicality, the suspect’s cell phone functioned no differently than a traditional beeper device. See id. In the case at bar, Detective Pieczonka testified that Zanders’ location data sent by his cell phone was not only used “to determine a path of travel[,]” but could also establish whether Zanders “moved within the building.” (Tr. pp. 690, 677).
P30 Courts have recognized that not all private information entrusted to third-party providers of communications services is subject to warrantless government inspection. As far back as 1877, the Supreme Court recognized Fourth Amendment protection against warrantless inspection of the contents of mail entrusted to the postal service for delivery. Ex Parte Jackson, 96 U.S. 727, 733, 6 Otto 727, 24 L.Ed. 877 (1877). The Court continued to recognize this protection 90 years later in Katz by stating “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U.S. at 351-52. The Court held that “[o]ne who occupies [a public phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” Id. at 352. In the current digital age, courts have continued to accord Fourth Amendment protection to information entrusted to communications intermediaries but intended to remain private and free from inspection. Courts have, for example, deemed government inspection of the contents of emails a Fourth Amendment search but have declined to do the same for email address information used to transmit these emails. Compare United States v. Warshak, 631 F.3d 266, 287-88 (6th Cir. 2010) (holding that email subscribers enjoy a reasonable expectation of privacy in the content of their emails even though such content is accessible to Internet service providers), with United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (holding that government surveillance of a computer to discover email address information, IP addresses, and amount of data transmitted by email does not constitute a Fourth Amendment search).
P31 Although historical location data is content-free, it is more than simple routing information. The cell-site data tracks a cell phone user’s location across specific points in time almost as detailed as a visual, in-person shadowing by police officers would. Moreover, prior to obtaining the cell-site records, the government does not know how granular the location data in the records is. If Zanders had been constantly starting and terminating phone calls, then the State would have obtained a continuous stream of historical location data, approaching the information that can be gleaned from a GPS device or a beeper. See Wertz v. State, 41 N.E.3d 276, 285 (Ind. 2015) (the data on defendant’s GPS device is subject to Fourth Amendment protections); Forest, 355 F.3d at 947.
P32 For years, courts and commentators have begun to acknowledge the increasing tension, wrought by our technological age, between the third-party doctrine and the primacy that the Fourth Amendment doctrine grants to our society’s expectation of privacy. In her concurring opinion in Jones, Justice Sotomayor declared that the assumption that people lack reasonable privacy expectations in information held by third parties is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring). See also Kyllo v. United States, 533 U.S. 27, 35, 121 S.Ct. 2038, 2044, 150 L.Ed.2d 94 (2001) (rejecting a “mechanical interpretation of the Fourth Amendment” in the face of “advancing technology”).
P33 The extent of information that we expose to third parties has increased by orders of magnitude since the Supreme Court decided Miller and Smith. To now apply a rigorous application of Miller and Smith, as the State advocates, would create a rule that would preclude virtually any Fourth Amendment challenge against government inspection of third-party records. As Warshak suggests, Smith and Miller do not endorse a blind application of the third party doctrine in cases where information, in which there exists clearly reasonable privacy expectations, is recorded by a third party through an accident of technology. See Warshak, 631 F.3d at 287-88. “[I]f a new technology permits the government to access information that it previously could not access without a warrant, using techniques not regulated under preexisting rules that predate technology, the effect will be that the Fourth Amendment matters less and less over time.” Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 215 Harv. L. Rev. 476, 527 (2011).
P34 The proliferation of cellular networks has left service providers with a continuing stream of increasingly detailed information about the locations and movements of network users. Prior to this development, people generally had no cause for concern that their movements could be tracked to this extent. That new technology has happened to generate and permit retention of this information cannot by itself justify inspection by the government. At the same time, a cell phone user cannot be said to voluntarily convey to her service provider information that she never held but was instead generated by the service provider itself without the user’s involvement. Accordingly, the third-party doctrine does not dictate the outcome of this case.