Editor’s Note: Terry Dwyer and I would like to acknowledge the extensive legal research and input for this article conducted by of one of Terry’s former students. Charles Barriere is presently a first-year law student at the College of William & Mary School of Law.
The U.S. Supreme Court’s decision in U.S. v. Jones was a narrow and limited opinion concerning law enforcement’s use of GPS technology. Jones left unanswered questions relating to the extent of government use of GPS technology without a warrant, specifically about requirements when there is no physical trespass upon personal property.
Federal circuit courts of appeal and state courts have been left to deal with rapid advances in technology while relying on dated U.S. Supreme Court decisions such as United States v. Knotts, United States v. Karo, and Kyllo v. United States.
Meanwhile, law enforcement remains aggressive in its use of this new technology in order to apprehend and investigate criminal suspects. The issue of whether an individual has a reasonable expectation of privacy with regard to where they are located has not been before the U.S. Supreme Court, but it is one of several Fourth Amendment claims relating to technology that will potentially find its place before the court.
Hints of Future Rulings?
From U.S. v. Jones — particularly the better reasoned concurring opinions of Justices Alito and Sotomayor — we can obtain a hint of how the Court may decide this issue, especially in light of lower court precedents and a continuing failure of Congress or state legislative bodies to enact legislation.
Subsequent Supreme Court opinions in cases like Florida v. Jardines reiterating the physical trespass standard applied in Jones provide further potential insight into where the Court may be heading. With regard to locational privacy claims, the most significant case law resides within the lower federal and state courts dealing with cell site locator information (CSLI).
This information can be sought in one of two ways — either as historical cell site data that seeks past locator information, or as prospective cell site data which seeks real time, present data.
The general case law within the federal district courts is that there is a probable cause requirement for prospective CSLI. The use of data from service providers to locate subscribers is prohibited by the Communications Assistance for Law Enforcement Act (CALEA — a 1994 amendment to the Stored Communications Act) and does not come within the authority provided by the Pen/Trap Statute. See, for example, In re Application for Order of a Pen Register, 402 F.Supp.2d 597 (D.Md., 2005); In re Application for Pen Register, 396 F.Supp.2d 747 (S.D. Tex., 2005); In Matter of Application of the United States, 412 F.Supp.2d 947 (E.D. Wisc., 2006).
However, a few federal district courts have allowed prospective CSLI under limited conditions. The limited conditions the courts have allowed were if the requirements of the Pen Register Statute and Stored Communications act were met, then obtaining limited forms of prospective CSLI was permissible.
This would allow single cell site information, such as the location of the tower antenna when the call begins and ends, without allowing other information beyond that, such as triangulation of the phone’s location. See In re Application of the United States for An Order for Disclosure, 405 F.Supp.2d 435 (SDNY, 2005); In the Matter of Application of the United States for an Order, 411 F.Supp.2d 678 (W.D. La., 2006); In the Matter of the Application of the United States for an Order, 433 F.Supp.2d 804 (S.D.Tex., 2006); In the Matter of the Application of the United States, 632 F.Supp.2d 202 (EDNY, 2008).
When it comes to historical CSLI there is a different approach taken by the district courts that generally relies on the third-party rule of U.S. v. Miller, 425 U.S. 435 (1976)(the rule being that there is no expectation of privacy in information transmitted or made available to a third party). Historical CSLI is considered a record of non-content information kept in the ordinary course of business by the cell service provider, therefore extending no expectation of privacy to the subscriber. See U.S. v. Graham, 846 F.Supp.2d 384 (D.Md., 2012); In re Applications of the United States for Orders Pursuant to Title 18, U.S. Code Section 2703(d), 509 F.Supp.2d 76 (D.Mass., 2007); U.S. v. Velasquez, 2010 WL4286276 (N.D. Cal., 2010); U.S. v. Suarez-Blanca, 2008 WL 4200156 (N.D. Ga., 2008); U.S. v. Benford, 2010 WL1595255 (N.D. Ind., 2010).
Historical CSLI in the aggregate — which provides a more intimate look at an individual’s past activities — presents a different consideration than historical CSLI under the third-party rule. This cumulative CSLI creates an exception to the third-party rule according to some courts, whereas others have held that the information converts a cell phone into a tracking device. See In re Application of the United States for an Order Authorizing Release of Historical Cell-Site Information, 736 F.Supp.2d 578 (EDNY, 2010); In re Application of the United States for an Order Authorizing the Release of Historical Cell-Site Information, 809 F.Supp.2d 113 (EDNY, 2011); In re Application of the United States for Historical Cell Site Data, 747 F.Supp.2d 827 (S.D. Tex., 2010); In re Application of the United States for Orders, 509 F.Supp.2d 64 (D.Mass., 2007).
A review of state court decisions indicates that the body of law with respect to prospective and historical CSLI is as varied as that found on the federal level. Florida takes a less restrictive approach to historical CSLI under third-party doctrine and no expectation of privacy (Mitchell v. State, 25 So.3d 632 (2009)) and to prospective CSLI when tracking a suspect on public roads (Tracy v. State, 69 So.3d 992 (2011)). Massachusetts, on the other hand, takes a more restrictive approach to historical CSLI and requires probable cause.
In Commonwealth v. Pitt, 2012 Mass. Super. LEXIS 39 (Sup. Ct. Norfolk, 02/23/12) the judge compared the cell phone to a tracking device when historical cell site information was accessed, as well as noting the ability of the information to reveal the defendant’s location in a private residence.
A later 2012 case, Commonwealth v. Wyatt, 2012 Mass. Super LEXIS 248 (Sup. Ct. Essex, 08/7/12), held that historical CSLI required probable cause since individuals have an expectation of privacy which society is willing to recognize. The court noted that subscribers are unlikely to be aware of the collection of historical CSLI in the use of their cell phones, and the government needs to be prevented from unfettered access to the details of an individual’s private life. The Massachusetts state court decisions’ more restrictive approach conflicts with that of the federal district courts within the jurisdiction, which have not required probable cause for historical CSLI.
Other state courts that have reviewed the issue have generally taken the less restrictive approach of the Florida state courts — New York in People v. Hall, 86 A.D.3d 450 (1st Dept., 2011); Louisiana in State v. Marinello, 49 So.3d 488 (La. App. 3d Cir., 2010); New Jersey in State v. Earls, 22 A.3d 114 (2011); Ohio in State v. Gipson, 2012 Ohio App. LEXIS 444 (2012).
There is an obvious disparity of legal opinion regarding the requirements for law enforcement to obtain certain records that may tend to provide the location — either past or present — of a criminal suspect.
However, due to the advanced nature of technology and the typically slow response of the law to rapid advances in technology, there is in the separate concurring opinions of Justices Alito and Sotomayor in Jones an acknowledgement that the privacy expectations of individuals in their cumulative cell phone records may not be lost.
While both Justices recognize a need for a legislative response, the reality is that the Court may still be left to decide the issue. Only a handful of states have any legislation relating to requests for this electronic information. If the day does come when the issue is squarely before the Court, the case law suggests that cumulative CSLI is the type of “dragnet law enforcement” that the U.S. Supreme Court did not address in Knotts and for which a majority of the present Justices are willing to grant as a reasonable expectation of privacy.
