{"id":9169,"date":"2013-09-25T06:44:11","date_gmt":"2013-07-31T00:00:02","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-07-30T23:59:02","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=9169","title":{"rendered":"CA5 finds historical cell site location data a mere business record unprotected by Fourth Amendment (2-1)"},"content":{"rendered":"

The Fifth Circuit (2-1) finds historical cell site location data a mere business record not protected by the Fourth Amendment. [Note the NJ Supreme Court disagreed 12 days earlier<\/a>.] In Re: Application of the United States of America for Historical Cell Site Data<\/a>, 724 F.3d 600, 58 Comm. Reg. (P & F) 1292 (5th Cir. 2013) [note: some news article links at end]:<\/p>\n

<\/p>\n

This qualification that the right to possession hinges on whether the third party created the record to memorialize its business transaction with the target, rather than simply recording its observation of a transaction between two independent parties, recently gained context and support from a case decided by the Sixth Circuit. In that case, United States v. Warshak, the court of appeals held that the \u201cgovernment may not compel a commercial [internet service provider] to turn over the contents of a subscriber\u2019s emails without first obtaining a warrant based on probable cause.\u201d 631 F.3d 266, 288 (6th Cir. 2010). The court reasoned that the emails were communications between two subscribers, not communications between the service provider and a subscriber that would qualify as business records. The provider was merely the \u201cintermediary.\u201d Id. at 286. <\/p>\n

Defining business records as records of transactions to which the recordkeeper is a party also fits well with the historical and statutory distinction between communications content and addressing information. See United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008) (\u201cIn a line of cases dating back to the nineteenth century, the Supreme Court has held that the government cannot
\nengage in a warrantless search of the contents of sealed mail, but can observe whatever information people put on the outside of mail, because that information is voluntarily transmitted to third parties.\u201d) (collecting cases); see, e.g., 18 U.S.C. \u00a7 2703(b)-(c). Communications content, such as the contents of letters, phone calls, and emails, which are not directed to a business, but simply sent via that business, are generally protected. However, addressing information, which the business needs to route those communications appropriately and efficiently are not. See Smith, 442 U.S. at 741 (finding significant that pen registers, unlike the listening device employed in Katz, \u201cdo not acquire the contents of communications\u201d and do not require a warrant); Forrester, 512 F.3d at 511 (\u201cThe government\u2019s surveillance of e-mail addresses also may be technologically sophisticated, but it is conceptually indistinguishable from government surveillance of physical mail. … E-mail, like physical mail, has an outside address \u2018visible\u2019 to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient.\u201d). <\/p>\n

Under this framework, cell 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 \u201crequired [n]or persuaded\u201d providers to keep historical cell site records. Jones, 132 S. Ct. at 961 (Alito, J., concurring in the judgment). 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.<\/p>\n

Moreover, these are the providers\u2019 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 it: 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.<\/p>\n

. . .<\/p>\n

We understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags, Greenwood, 486 U.S. at 40-41, or the view of their property from 400 feet above the ground, Florida v. Riley, 488 U.S. 445, 451 (1989), to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.<\/p>\n

Recognizing that technology is changing rapidly, we decide only the narrow issue before us. Section 2703(d) orders to obtain historical cell site information for specified cell phones at the points at which the user places and terminates a call are not categorically unconstitutional. We do not address orders requesting data from all phones that use a tower during a particular interval, orders requesting cell site information for the recipient of a call from the cell phone specified in the order, or orders requesting location information for the duration of the calls or when the phone is idle (assuming the data are available for these periods). Nor do we address situations where the Government surreptitiously installs spyware on a target\u2019s phone or otherwise hijacks the phone\u2019s GPS, with or without the service provider\u2019s help. <\/p><\/blockquote>\n

NYT: Warrantless Cellphone Tracking Is Upheld<\/a> by Somini Sengupta<\/p>\n

Law.com: No Warrant Needed for Cell Site Data, Fifth Circuit Says<\/a> by Mike Scarcella<\/p>\n

Wired.com: Cops Can Track Cellphones Without Warrants, Appeals Court Rules<\/a> by David Kravets (“The 2-1 decision by the 5th U.S. Circuit Court of Appeals is the third federal appeals court to decide the privacy issue. Adding to the possibility that the U.S. Supreme Court might take up the topic, New Jersey\u2019s high court two weeks ago ruled that warrants were required for the location data.”)<\/p>\n

Most lower court opinions find it information protected by the Fourth Amendment, as does NJ.<\/p>\n","protected":false},"excerpt":{"rendered":"

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