In a 2-1 decision, the Fifth Circuit Court (link to full opinion in PDF) held that the Government does not need a warrant to obtain Cell Site Location Information (CSLI). CSLI is the information that is obtained when a person’s cell phone “pings” nearby towers of his or her service provider. The cell phone pings the three nearest towers, thereby triangulating the owner’s approximate location. In an area with high cell phone tower density, such as most metropolitan cities, the cell phone’s actual location could be within a few feet of the triangulation.
Cell phone service providers store the data gathered, including location data, every time a cell phone pings its towers. In essence, the Government could use that information to determine a person’s location and movement over a period of time.
There is a split of opinion between Courts in the United States as to whether this information is protected under the Fourth Amendment’s Search & Seizure Clause–which would trigger the warrant and probable cause requirement. The Government, in almost all cases that have been appealed so far, and in this case, relies on the antiquated Stored Communications Act (SCA), specifically Section 2703(d) to obtain this information without a warrant. Also know as a 2703(d) order, this provision allows the Government to obtain a person’s CSLI if it can show “specific and articulable facts” that it needs it–a standard that is far less than probable cause.
In this case, what was especially alarming is that the Government contends that this location information is only obtained when a user makes a phone call. However, a cell phone pings its towers not only when making a call, but every time it uses data services. The ubiquity of smartphones in today’s society makes this especially problematic. Most smartphones automatically use data to update, for example, a user’s email. This continuous communication between the cell phone and the service provider’s towers allows the Government to precisely track a person’s past movements—and predict future ones.
The reasoning used by the Fifth Circuit indicates that the Court simply does not understand the way CSLI works and, in fact, many other courts, such as the Sixth Circuit, do not as well. In affirming that the Government can continue to obtain CSLI records without a warrant, it noted the Government’s assertion that CSLI is transmitted only during phone calls. Relying on that fact, the Court goes on to say that since this information is voluntarily transmitted by the user, the user loses his or her “reasonable expectation of privacy” that is required under the Fourth Amendment.
The wide divergence in opinion between Courts is in part because of the fact that there were no smart phones or even wide spread consumer cell phone use when the SCA was enacted. The SCA is an antiquated statute that must be overhauled in order to address, and prevent, use of CSLI without a warrant by the Government.
The Fifth Circuit’s holding demonstrates the need for the United States Supreme Court to clarify the Fourth Amendment’s applicability in this area–an opportunity it side-stepped in US. v. Jones. The ambiguity of the current law necessitates that the inquiry be answered on a case-by-case basis by thousands of different magistrate judges—many of whom who have their own understandings as to what is private or not and may lack the necessary technological expertise to ascertain what kind of information is disclosed.*The opinions expressed in this post are that of the Author’s and do not necessarily reflect the Firm’s views.