Bona fide emergency pinging of defendant\u2019s cell phone to find him did not violate the Stored Communications Act or the Fourth Amendment. United States v. Caraballo, 2013 U.S. Dist. LEXIS 112739 (D. Vt. August 7, 2013):<\/p>\n
<\/p>\n
The government argues that because all of the cell phone pinging in this case took place while Defendant was in a motor vehicle on a public highway, he cannot be said to have a subjective expectation of privacy because his location was in fact public. The problem with this argument is twofold. First, it is undisputed that the information in question would have been transmitted to law enforcement via the pinging regardless of whether Defendant was in the sanctity of his home or on a public highway. Thus, unlike a beeper placed on a motor vehicle, Defendant’s location was not derived in any respect because he was in a motor vehicle and thus had voluntarily exposed his location to the public. Second, because law enforcement did not know Defendant’s actual location or path of travel, there was no means of tracking Defendant’s movements using traditional surveillance methods and publicly available technology. Instead, Defendant’s location was obtained solely through the use of nonpublic technology that would have revealed his likely presence in his own home even if that fact was not evident from visual surveillance. See Kyllo v. United States, 533 U.S. 27, 40 (2001) (“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”). The Supreme Court’s electronic surveillance jurisprudence explains why these facts are important.<\/p>\n
. . .<\/p>\n
Here, however, disclosure of Defendant’s cell phone data location did not occur in the ordinary course of providing cellular phone service. Rather, it occurred pursuant to a special, surreptitious procedure not available to the general public, initiated solely by law enforcement, without notice or any volitional activity by Defendant other than having his phone in the “on mode.” As a general proposition, cell phone users do not expect their cell phones to be pinged in the ordinary course of business. In this respect, the instant case is distinguishable from Smith and Miller as pinging simply is not part and parcel of the provision of cellular phone service. This court, however, need not resolve the thorny question of whether an individual generally maintains a subjective expectation of privacy in his or her real time location data where that information is obtained exclusively through pinging because any subjective expectation of privacy in such circumstances must give way where, as here, there is a true emergency.<\/p>\n
4. Expectations of Privacy in the Face of an Emergency.<\/p>\n
As a threshold proposition, in 2011, cell phone users, like the telephone users in Smith and Miller, were generally aware that their cell phones may contain a location device that can be accessed by law enforcement and other first responders in the event of an emergency. Indeed, by 2011, federal law mandated that cell phones provide enhanced location services whenever 911 services were accessed. 6 In turn, in 2011, 18 U.S.C. \u00a7 2702(c)(4) of the Stored Communications Act authorized cell phone service providers to disclose without a warrant “a record or other information pertaining to a subscriber to or customer of [cell phone] service … to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” Congress thus deemed it reasonable to subordinate any individual privacy interest in cell phone location information to society’s more compelling interest in preventing an imminent threat of death or serious bodily injury. “Because there is a ‘strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is “reasonable,” “[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional.” United States v. Watson, 423 U.S. 411, 416 (1976) (quoting United States v. Di Re, 332 U.S. 581, 585 (1948)).<\/p>\n
Moreover, even in the unlikely event that Defendant is correct in arguing that law enforcement and Sprint Nextel violated the emergency provisions of the Stored Communications Act, any violation would not give rise to a Fourth Amendment violation that did not otherwise exist. See City of Ontario v. Quon, 130 S. Ct. 2619, 2632 (2010) (noting that even if there was a violation of theShared Communications Act, “it does not follow that petitioners’ actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise.”) (citing Virginia v. Moore, 553 U.S, 164, 168 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U.S. 35, 43 (1988) (rejecting argument that if state law forbade police search of individual’s garbage the search would violate the Fourth Amendment)); see also United States v. Kington, 801 F.2d 733, 737 (5th Cir. 1986) (analyzing the Right to Financial Privacy Act and holding that “[t]he rights created by Congress are statutory, not constitutional.”).<\/p>\n
Sprint Nextel’s general terms and conditions of service and its privacy policies underscore the conclusion that Defendant did not retain an actual subjective expectation of privacy in his real time location data in an exigent situation. In 2011, Sprint Nextel advised its customers that it collects information regarding the location of its customers’ cell phones while in use, it generally knows where those cell phones are, and it “may access, monitor, use or disclose [that] personal information or communications to do things like: … comply with the law or respond to lawful requests or legal process … [and] respond to emergencies[.]” Gov’t Ex. 3 at 2. Defendant thus clearly had notice that disclosure of his cell phone’s location to law enforcement may occur in order to respond to an emergency. Contrary to Defendant’s argument, this emergency was not limited to his own safety but, by its terms, extended to a threat to the safety of others.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
b2evALnk.b2WPAutP Continue reading