The Secure Times

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


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Warrant Needed In Massachusetts to Obtain Cell Phone Records

The Massachusetts Supreme Judicial Court ruled 5-2 on February 18 in Commonwealth v. Augustine that the government must first obtain a warrant supported by probable cause before obtaining two weeks worth of historical cell site location information (CSLI).

Defendant had been indicted for the 2004 murder of his former girlfriend. During the investigation, the prosecution filed for an order to obtain CSLI from the suspect’s cellular service provider, but the order was filed under 18 U.S.C. § 2703(d) of the Stored Communications Act (SCA). Under that law, the government does not need to show probable cause, but only needs to show 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.”

The order was granted by the Superior Court in September 2004. Defendant was indicted by a grand jury in 2011, and filed a motion to suppress evidence associated with his cell phone in November 2012.

A judge from the Superior Court granted his motion to suppress, reasoning that this was a search under article 14 of the Massachusetts Declaration of Rights – which is similar to the Fourth Amendment to the U.S. Constitution – and thus a search warrant was required.

The Commonwealth of Massachusetts appealed, arguing that the CSLI was a business record, held by a third party, and that the defendant had no expectation of privacy in this information as he had voluntarily revealed it to a third party.

This argument did not convince the Massachusetts Supreme Judicial Court, ruling instead that defendant had an expectation of privacy in the CSLI and that the prosecution therefore needed to obtain a warrant based on probable cause to obtain this information.

The Third Party Doctrine

Why did the court find that the defendant had an expectation of privacy in his CSLI, even though this information was known by a third party, his cell phone service provider?

Under the U.S. Supreme Court third party doctrine, as stated in the U.S. v. Miller 1976 case and in the 1979 Smith v. Maryland case, a defendant has no reasonable expectation of privacy in information revealed to third parties.

In Miller, the Supreme Court found that defendant has no expectation of privacy in his bank records, as they were “business records of the banks.” Similarly, in Smith v. Maryland, the Supreme Court held that installing and using a telephone pen register was not a “search” under the Fourth Amendment, and thus no warrant was required, because the defendant had no expectation of privacy in the phone numbers he had dialed.

First, the Massachusetts Supreme Judicial Court recognized article 14 of the Massachusetts Declaration of Rights affords more protection than the Fourth Amendment to the U.S. Constitution.

 

Then, the Supreme Judicial Court distinguished Miller and Smith from the case, finding “significant difference” between these two cases and the case at stake. The Court noted that “the digital age has altered dramatically the societal landscape from the 1970’s.

In Smith, the defendant had taken an affirmative step when dialing the numbers which had been communicated to the prosecution by the telephone company. He had to do it in order to be able to use his telephone service. As such, Smith had “identified] a discrete item of information…like a telephone number (or a check or deposit slip as in Miller) and then transmit it to the provider.”

But cell phone users do not transmit their data to their cell phone company in order to use the service. Instead, “CSLI is purely a function and product of cellular telephone technology, created by the provider’s system network.”

The court also noted that, while using a landline may only indicate that a particular party is at home, CSLI provides a detailed report of an individual’s whereabouts. The Massachusetts court quoted the State v. Earls case from the New Jersey Supreme Court, which stated that using a cell phone to determine the location of its owner “is akin to using a tracking device and can function as a substitute for 24/7 surveillance.”

As CSLI is business information “substantively different from the types of information and records contemplated by Smith and Miller,” the court concluded that it “would be inappropriate to apply the third-party doctrine to CSLI.” However, the court added that they saw “no reason to change [their] view thatthe third-party doctrine applies to traditional telephone records.”

Obtaining CSLI from a Cell Phone Provider is a Search and Thus Requires a Warrant

The court then proceeded to answer the question of whether the government needed a warrant to access the CSLI.

As CSLI informs law enforcement about the whereabouts of an individual, the Massachusetts Supreme Judicial Court compared it to electronic monitoring devices such as a GPS. It noted that “it is only when such tracking takes place over extended periods of time that the cumulative nature of the information collected implicates a privacy interest on the part of the individual who is the target of the tracking,” quoting the Supreme Court U.S. v. Jones case, where Justice Sotomayor and Justice Alito both noted in their concurring opinions that the length of a GPS surveillance is relevant to determine whether or not the individual monitored has or does not have an expectation of privacy.

The Massachusetts Supreme Judicial Court found relevant the duration of the period of time for which historical CSLI was sought by the government. The government may only obtain historical CSLI, meeting the SCA standard of specific and articulable facts, if the time period is “too brief to implicate the person’s reasonable privacy interest,” but the two-week period covered in this case exceeds it.

The court’s ruling was about article 14 of the Massachusetts Declaration of Rights. The Supreme Court has not yet considered the issue of whether obtaining CSLI is a search under the Fourth Amendment. Since courts are split on this issue, it is likely that the Supreme Court will answer the question of whether a warrant is required to obtain cell phone location records quite soon. 


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Amicus Briefs filed asking Court to determine if warrentless searches of cell phone data are permissible under the Fourth Amendment

Two recent petitions for certiorari were filed regarding whether the Fourth Amendment permits police officers to search all or some digital contents of an arrestee’s cell phone incident to arrest.  Federal courts of appeal and state courts of last resort are divided on this issue.  On July 30, 2013, a petition for certiorari was filed asking the Supreme Court to review a California Court of Appeal, Fourth District case, Riley v. California.  On August 19, 2013 the U.S. Solicitor General submitted an amicus brief asking the Supreme Court to reverse the First Circuit Court of Appeal’s decision in U.S. v. Wurie.  These cases are noteworthy since they touch on arrestee’s rights to their cell phone data and since the Fourth Amendment is a bedrock for privacy law in the United States.

In U.S. v. Wurie, the police confiscated the arrestee’s Verizon LG flip-phone and retrieved the phone number of an incoming call labeled “my house.”  The police used that phone number to determine the arrestee’s residence and gather further evidence.  In Riley v. California, the police searched the arrestee’s smartphone, made an extenstive search of its digital contents, and were able to gather evidence linking the arrestee to more serious crimes.  In both instances, the police made the searches without a warrant pursuant to the search-incident-to-arrest exception to the Fourth Amendment that allows police officers to perform a class of searches that have been deemed potentially necessary to preserve destructible evidence or protect police officers. 

The question of whether the search of cell phone data could ever be justified under the search-incident-to-arrest exception has come up in federal and state courts in the past, some finding that warrantless cell phone data searches are categorically lawful, others upholding a limited search.  In Riley v. U.S., the California Court of Appeal held that because the cell phone was immediately associated with the arrestee’s person at the time of his arrest, the warrantless search was valid.  The First Circuit joined at least two other state courts of last resort in creating a bright-line rule rejecting all warrantless cell phone data searches and declined to create a rule based on particular instances.  In its amicus brief, the Solicitor General argued that even if cell phone data searches do not fall under the search-incident-to-arrest exception, the First Circuit erred in imposing a blanket prohibition.

Cell phone data searches struck the First Circuit as “a convenient way for the police to obtain information related to a defendant’s crime of arrest—or other, as yet undiscovered crimes—without having to secure a warrant.”  In rendering its opinion, the court found that data contained on cell phones, such as photographs, videos, written and audio messages, contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records is highly personal in nature, would previously have been stored in one’s home, and reflects private thoughts and activities.  Additionally, the court noted that certain applications, if installed on modern cell phones, provide direct access to the home by remotely connecting to a home computer’s webcam.  Given the highly personal nature of the data and the scope of the search, potentially a home search, the court found that cell phone data is categorically different from otherwise allowable categories of searches incident to arrest. 

The First Circuit rejected the government’s argument that the cell phone data search was necessary to prevent evidence from being destroyed by remote wiping before a warrant issued.  The First Circuit noted that the police have evidence preservation methods, such as removing the phone’s battery, turning off the phone, placing the phone in a device that blocks external electromagnetic radiation, or by making a mirror copy of the phone’s entire contents.  Unlike other circuits, the First Circuit viewed the “slight and truly theoretical risk of evidence destruction,” a risk that was “‘remote’ indeed,” as insufficient when weighed against the “significant privacy implications inherent in cell phone data searches.”  In its amicus brief, the Solicitor General argued that cell phone searches are more critical to preserving extractable evidence than previously allowed searches since co-conspirators could remove data remotely. 

The First Circuit also rejected the government’s argument that searches of items carried on one’s person are justified since the arrestee had a reduced expectation of privacy caused by the arrest.  This was the basis for the California Court of Appeal’s decision in Riley.  The Solicitor General tried to revive this argument in its amicus brief.  The First Circuit rejected this argument since at the time of the precedent cited, the court “could not have envisioned a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast storage of intangible data—data that is not immediately destructible and poses no threat to the arresting officers.”   Allowing police to search such data at the time of arrest would create, in the court’s view, “a serious and recurring threat to the privacy of countless individuals.” 

In making its categorical ban on warrantless cell phone data searches under the search-incident-to-arrest exception, the First Circuit noted that the exigent circumstances exception to the Fourth Amendment warrant requirement might apply where the police have probable cause to believe that the phone contains evidence of a crime, as well as a compelling need to act quickly, that makes it impractical for them to obtain a warrant. 

 

 


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

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.