NE: Third party doctrine unchanged: CSLI has no REP

Defendant’s CSLI information was obtained by court order under the Stored Communications Act, and defendant had no reasonable expectation of privacy in this third party information. State v. Jenkins, 294 Neb. 684, 2016 Neb. LEXIS 133 (Sept. 9, 2016):

In arguing that we should recognize a reasonable expectation of privacy on these facts, Jenkins claims the cell phone records stored by her service provider contain “far more than simply a call log,” because “such information can be used to track [her] movements and location.” She points out the records were used at trial to provide evidence of her general location during the robbery and homicide. As such, she argues our analysis of the records should be governed by global position system (GPS) tracking cases such as U.S. v. Jones, rather than by Smith.

In Jones, the FBI and local law enforcement secretly installed a GPS tracking device on a private vehicle and monitored the vehicle’s movements for 28 days. The GPS device established the vehicle’s location within 50 to 100 feet and communicated that location to a government computer. The Jones Court concluded that the government physically intruded on the defendant’s private property to install the GPS device and that the government’s use of that device to monitor the vehicle’s movements constituted a search and violated the Fourth Amendment. The Court highlighted the significance of the governmental activity involved, stating:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

But the present case does not involve the issue of government tracking, and the Court’s analysis in Jones tells us little about whether the State’s acquisition of business records containing historical CSLI from a cellular service provider is a search within the meaning of the Fourth Amendment. Unlike the GPS surveillance information collected by the government in Jones, the historical CSLI obtained in the present case is routinely collected by the service provider for all subscribers and enables only general conclusions to be drawn regarding the caller’s location when calls and texts are sent and received. The historical CSLI in this case was not collected by the government, did not involve a physical intrusion on private property, and did not enable real-time tracking or permit prosecutors to place Jenkins at a precise location at any point in time.

It is worth mentioning that, given the landline technology of telephones at the time of Smith, the records obtained by the government in that case arguably contained more precise location data than the CSLI at issue here, because landlines are associated with a physical street address. The fact that the business records in Smith showed exactly where the caller was (in his home) at the time the calls were placed did not preclude the Court from applying the third-party doctrine and concluding he had no reasonable expectation of privacy in the telephone records. Despite advances in technology, we see no compelling reason to depart from the third-party doctrine just because the business records at issue pertain to a customer’s use of a cell phone rather than a landline telephone.

It is true that the technology used to route cell phone communications may act in some respects like a tracking device, but it is one which cellular customers knowingly and voluntarily carry and use, not one placed secretly on their person or property by the government. And the routing information from which general location information can later be gleaned is information recorded and kept by the service provider in the ordinary course of business, not at the behest of the government. These distinctions are significant. Cases such as Jones, which analyze direct government surveillance using GPS technology, do not answer the question whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third-party service provider, cell phone records which include historical CSLI from which the government can deduce general location information.