The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

5th Circuit: SCA Orders Compelling Disclosure of Historical Cell Site Information Constitutional

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The 5th Circuit held yesterday that Stored Communications Act (SCA) orders to obtain historical cell site information are not categorically unconstitutional. The case is In Re: Application of the U.S. for Historical Cell Site Data, number 11-20884.

Facts of the Case

The U.S. filed three applications in 2010 under 18 U.S.C. §2703(d) to compel cell phone providers to produce sixty days of historical cell site data and subscriber information.

Under 18 U.S.C. §2703(d), “[a] court order for disclosure… may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

A magistrate judge granted the requests for subscriber information, but denied the request for historical cell site data, and found that compelling the disclosure of this information would violate the Fourth Amendment.

The U.S. filed an ex parte application objecting to the ruling with the Southern District of Texas. The district judge ruled against the U.S., noting that “[t]he standard under the Stored Communications Act is below that required by the Constitution.” The U.S appealed.

Specific and Articulable facts Standard, or Probable Cause ?

According to the District Court, the SCA violates the Fourth Amendment as it allows the government to obtain a record merely on showing “specific and articulable facts,” not probable cause, and thus the Government can only acquire historical cell site data under a warrant issued on probable cause.

But the 5th Circuit interpreted §2703(d) that “shall” direct courts to issue such orders if the Government meets the “specific and articulable facts” standard.

Privacy of Location Information

The ACLU had filed an amicus curiae brief, arguing that individuals have a reasonable expectation of privacy in their location information, if they are tracked in a place traditionally protected against intrusions, such as a home, or if they are tracked for a longer period of time and in greater detail than society would expect. Indeed, in U.S. v. Jones, the Supreme Court concluded in 2012 that extended monitoring of a vehicle using a GPS system is a search under the Fourth Amendment.

But the 5th Circuit reasoned that, as the Fourth Amendment only protects the privacy of individuals against government intrusion, and does not give individuals the right to be left alone by other people, the Government indeed has the right to require information collected by third parties. Here, it was the the cell phone providers which had collected and stored information in the first place, not the Government. The Court concluded that if “a third party collects information in the first instance for its own purposes, the Government … can obtain this information later with a § 2703(d) order, just as it can subpoena other records of a private entity.”

The Fifth Circuit also noted that historical cell data are not private papers, but rather have been created to memorialize business transactions with the cell phones users, not to record its observation of transactions between individuals. Therefore,“cell site information is clearly a business record.”

The Fifth Circuit was not convinced by the ACLU’s argument that cell phone users do not relinquish their information voluntary to a third party, which indeed would then prevent them to claim a right to privacy in the information thus shared.

Instead, the Fifth Circuit agreed with the Government which argued that cell phone users know that they share information with cell phone providers when making calls, and that they voluntarily continue to make calls, and that using a phone “is entirely voluntary.”

Judge Dennis wrote a dissent, noting the “Supreme Court‘s conscientious avoidance of similar questions regarding the Fourth Amendment implications of modern telecommunications technologies,” such as in the Quon case.


Author: marieandreeweiss

Marie-Andrée was educated in France and in the United States, and holds law degrees from both countries. She is fully bilingual English-French, and writes articles regularly in these two languages on various privacy-related topics. Marie-Andrée is a member of the Bar of the State of New York. As an attorney in solo practice, she focuses on intellectual property, First Amendment, privacy, and Internet-related issues. Before becoming an attorney, she worked several years in the fashion retail industry, as a buyer then a director of marketing. She is a member of the New York State Bar Association (Intellectual Property Section and International Section), and of the American Bar Association (Business Law Section, Section of Antitrust Law, and Section of Intellectual Property Law)

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