Technology is changing faster than the law. Cell phone location data is subject to the Fourth Amendment because it can reveal information from within the home. Indeed, cell phone location data is more invasive than GPS tracking. In re Application of the United States of America for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010):
Five years ago the first reported decisions on government acquisition of cell site information from telephone companies appeared. 4 The focus of those early decisions was the appropriate legal standard for obtaining prospective location information under the Electronic Communications Privacy Act (ECPA). Thereafter, a handful of decisions addressed the related problem of law enforcement access to historical cell site data collected and maintained by providers over time. A few courts have held that such requests triggered the Fourth Amendment warrant requirement, 5 but most courts to date have granted government access to such information under the SCA, which imposes a less-than-probable cause standard. 6
4 See In re Application of U.S., 384 F. Supp. 2d 562 (E.D.N.Y. 2005), on reconsideration, 396 F. Supp. 2d 294 (E.D.N.Y. 2005) (Orenstein, M.J.); In re Application of U.S., 396 F. Supp. 2d 747 (S.D. Tex. 2005) (Smith, M.J.); In re Application of U.S., 402 F. Supp. 2d 597 (D. Md. 2005) (Bredar, Mag.); In re Application of U.S., 407 F. Supp. 2d 132 (D.D.C. 2005) (Facciola, M.J.); In re Application of U.S., 405 F. Supp. 2d 435 (S.D.N.Y. 2005) (Gorenstein, M.J.).
5 See In re Application of U.S., 534 F. Supp. 2d 585 (W.D. Pa. 2008) (Lenihan, M.J.), aff’d No. 07-524M, 2008 WL 4191511 (W.D. Pa. Sep. 10, 2008) (McVerry, D.J.), vacated __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010); In re Application of U.S., Nos. 1:06-MC-6, 1:06-MC-7, 2006 WL 1876847 (N.D. Ind. July 5, 2006) (Lee, D.J.).
6 See 18 U.S.C. § 2703(d); In re Application of U.S., 509 F. Supp. 2d 76 (D. Mass. 2007) (Stearns, D.J.), reversing 509 F. Supp. 2d 64 (D. Mass. 2007) (Alexander, M.J.); United States v. Suarez-Blanca, No. 1:07-CR-0023-MHS/AJB, 2008 WL 4200156 (N.D. Ga. Apr. 21, 2008) (Baverman, M.J.);United States v. Benford, No. 2:09CR86, 2010 WL 1266507 (N.D. Ind. Mar. 26, 2010) (Moody, D.J.).
Several weeks ago U.S. Magistrate Judge James Orenstein, who authored the very first cell site opinion, suggested in a new opinion 7 that courts re-examine the constitutionality of historical cell site requests in light of recent appellate court decisions, such as that of the District of Columbia Court of Appeals in United States v. Maynard. 8 As if to underscore his point, two weeks later the Third Circuit became the first federal appellate court to issue an opinion dealing with government access to historical cell site data. 9 Rather than definitively resolving the Fourth Amendment issue, the court remanded the case to the district court, concluding that the factual record was insufficient to resolve whether such records “could encroach upon … citizens’ reasonable expectations of privacy regarding their physical movements and locations.” 10
7 In re Application of U.S., No. 10-MJ-00550(JO), 2010 WL 3463132 (E.D.N.Y. Aug. 27, 2010) (holding that historical cell site information is protected by the warrant requirement of the Fourth Amendment).
8 615 F.3d 544 (D.C. Cir. 2010).
9 In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records, __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010).
10 Id. at *6.
Though significant, the caselaw developments have been outstripped by advancing technology. Recently, committees in both the House and Senate have conducted hearings on proposals to update ECPA, the 1986 statute establishing the regulatory regime governing electronic communications. Expert testimony at those hearings reveals that regulatory and market forces have produced dramatic advances in location technology over the past half-decade. As will be shown, this new technology has altered the legal landscape even more profoundly than the new caselaw.
. . .
Conclusions of Law
A. Under Current Location Technology, Cell Site Information Reveals Non-Public Information About Constitutionally Protected Spaces
. . .
Even if an exact latitude and longitude is not yet ascertainable or recorded for every single mobile call, network technology is inevitably headed there. As the Supreme Court observed in Kyllo v. United States regarding the ongoing research and development of radar surveillance devices:
While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or development.
533 U.S. 27, 36 (2001). Like the thermal imaging devices in Kyllo, the cellular location technology in use or development today crosses the “firm but also bright” Fourth Amendment line that the Supreme Court has drawn at the entrance to the house. Id. at 40. Accordingly, the cell site records generated by that technology are subject to constitutional protection.
B. Historical Cell Site Records Are Subject to Fourth Amendment Protection under the Prolonged Surveillance Doctrine of United States v. Maynard
It is true that cell site records for a single day may not always reveal particularly intimate details about the user’s private life but merely that the user’s cell phone (like the Karo beeper) was present in the home at a particular time. Nevertheless, as Justice Scalia has observed, “[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” Kyllo, 533 U.S. at 37 (emphasis in original). In this case, the records sought by the Government are likely far more intrusive — not a single snapshot at a point in time, but a continuous reality TV show, exposing two months’ worth of a person’s movements, activities, and associations in relentless detail.
In his decision denying warrantless access to historical cell site information, Judge Orenstein relied most heavily on the recent decision of the Court of Appeals for the District of Columbia in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In light of the technological developments noted above, reliance on the Maynard precedent is not essential to the ruling here. Even so, Maynard‘s treatment of month-long GPS surveillance is instructive, and provides additional support and alternative grounds for this decision.
. . .
In several respects, the historical cell site records sought here are more invasive than the GPS data revealed in Maynard. The duration and volume of information sought is more than doubled — 60 days as opposed to 28 days of movement. As we have found, the level of detail provided by cell site technology now approaches that of GPS, and its reliability in obtaining a location fix actually exceeds that of GPS. 79 Moreover, as Judge Orenstein points out, cell phone tracking is likely more revealing than a GPS device attached to a car, because the cell phone is carried on the person. 80 It will also inevitably be more intrusive, because the phone can be monitored indoors where the expectation of privacy is greatest. By contrast, the GPS device in Maynard revealed no information about the interior of a home or other constitutionally protected space.
This case also has a simple and insightful discussion of today’s cell phone technology.
[I’ve looked online this morning for a free copy of this case. S.D. Tex., EFF, and EPIC don’t have it posted yet. If somebody sees it free online, please forward me the link.]
Update: The ACLU provided me the link to the case. Thanks, ACLU.
