D.Md. follows majority and does not require PC for historical cell site location data

This district court follows the majority and does not require probable cause for historical cell site location data. United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012):

Some courts, most notably the Eastern District of New York and the Southern District of Texas, have concluded that, under certain circumstances, applications seeking cell site location data must be granted only after a showing of probable cause, and not the lower statutory standard of “specific and articulable facts” contained in the Stored Communications Act. See, e.g., In re Application of the United States, 809 F. Supp. 2d 113 (E.D.N.Y. 2011) (Garaufis, J.); In re Application of the United States, 747 F. Supp. 2d 827 (S.D. Tex. 2010) (Smith, Mag. J.), appeal docketed, No. 11-20554 (5th Cir. Dec. 14, 2011); In re Application of the United States, 736 F. Supp. 2d 578 (E.D.N.Y. 2010) (Orenstein, Mag. J.), rev’d No. 10-MC-0550 (E.D.N.Y. Nov. 29, 2011) (unpublished order noting written opinion to follow). Those courts have essentially held that a government application for cell site location records does not implicate the Fourth Amendment if the request is for a discrete, and relatively short period of time. Compare In re Application, 736 F. Supp. 2d at 578-79 (application requesting cell site location data for a period of 58 days required warrant based on probable cause); In re Application, 747 F. Supp. 2d at 829 (60 days), with In re Application of the United States, No. 11-MC-0113, 2011 WL 679925, at *1 (E.D.N.Y. Feb. 6, 2011) (application for a period of 21 days required only specific and articulable facts, and not probable cause). In other words, those courts have concluded that the Fourth Amendment is only implicated when the government surveillance of historical cell site location data occurs over a sufficiently long—albeit undefined—period of time so as to implicate a person’s legitimate expectation of privacy. None of these decisions have explicitly defined the length of time at which a request for cell site location data must be supported by probable cause, but Magistrate Judge Orenstein of the Eastern District of New York suggested that thirty days might be an appropriate limit. See In re Application, 2011 WL 679925, at *2.

A majority of courts, on the other hand, have concluded that the acquisition of historical cell site location data pursuant to the Stored Communications Act’s specific and articulable facts standard does not implicate the Fourth Amendment, regardless of the time period involved. See, e.g., United States v. Dye, No. 10CR221, 2011 WL 1595255, at *9 (N.D. Ohio Apr. 27, 2011); United States v. Velasquez, No. 08-730-WHA, 2010 WL 4286276, at *5 (N.D. Cal. Oct. 22, 2010); United States v. Benford, No. 09 CR 86, 2010 WL 1266507, at *3 (N.D. Ind. Mar. 26, 2010); United States v. Suarez-Blanca, No. 07-023-MHS/AJB, 2008 WL 4200156, at *8-11 (N.D. Ga. Apr. 21, 2008); In re Application of the United States, 509 F. Supp. 2d 76, 80-81 (D. Mass. 2007). These courts have primarily relied on a line of Supreme Court cases construing the scope of Fourth Amendment rights relating to business records held by third parties. More specifically, these courts have concluded that because people voluntarily convey their cell site location data to their cellular providers, they relinquish any expectation of privacy over those records. See Suarez-Blanca, 2008 WL 4200156, at *8 (finding no expectation of privacy in records kept by third parties) (citing, inter alia, Smith v. Maryland, 442 U.S. 735, 743-44 (1979); United States v. Miller, 425 U.S. 435, 442-44 (1976)).

For the following reasons, this Court concludes that the Defendants in this case do not have a legitimate expectation of privacy in the historical cell site location records acquired by the government. These records, created by cellular providers in the ordinary course of business, indicate the cellular towers to which a cellular phone connects, and by extension the approximate location of the cellular phone. While the implications of law enforcement’s use of this historical cell site location data raise the specter of prolonged and constant government surveillance, Congress in enacting the Stored Communications Act, has chosen to require only “specific and articulable facts” in support of a government application for such records. Put simply, the Fourth Amendment, as currently interpreted, does not contemplate a situation where government surveillance becomes a “search” only after some specified amount of time.

[Sorry, it was too hard to use Google Scholar to locate all of them. I don’t have that much time.]