Fifth Circuit Upholds the Warrantless Search of Cell Phone Location Information

privacy-location

By Wassem Amin, Esq.

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.

Law Enforcement’s Use of License Plate Detection Technology Raises Privacy Concerns

This past Monday, the Boston Globe discussed the increased use of license-plate reading cameras and other technology law enforcement organizations around Massachusetts have utilized over the past several years.[1]  The cameras have proven to be incredibly effective for law enforcement in detecting vehicles that are stolen, unregistered or uninsured.  Moreover, they have proven to be a remarkable return on investment.  One Sergeant insisted that the camera on his vehicle paid itself back within a matter of the first 11 days on the road.

An effective and efficient piece of technology to assist law enforcement, what’s not to love?  Not surprisingly, the technology’s popularity is on the rise in police departments throughout the Commonwealth.  They are useful in solving crimes, mainly because they are able to better track the movement of vehicles. “Most of the departments that deploy license plate readers use them primarily for traffic enforcement. But the scanners — sometimes called by the acronym ALPR — are also used for missing persons, AMBER alerts, active warrants, and open cases.”

But is this technology empowering government to the detriment of our civil liberties?  After all, nobody wants to live in a society where their every movement is monitored and recorded.

Should this useful technology be utilized to help law enforcement? 

Some would argue no.  As Benjamin Franklin once stated: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Many citizens would not go as far as Dr. Franklin.  Indeed, most Americans are willing to forego some privacy for the sake of enhanced security.

Of course, there is a larger question of what is a reasonable expectation of privacy?  Many of us have smartphones with GPS tracking technology, have we already ceded some of our privacy?  In the course of an ordinary day, most Americans come in contact with several forms of technology (smartphones, debit cards, laptops, tablets, etc) that make it easier to track our habits and whereabouts.  Again, what is reasonable?

If so, how do we prevent this technology from creating a dystopian, 1984-like society? 

The Boston Globe highlighted various instances of abuse by other Police Departments utilizing this technology.  Our law enforcement agencies are neither above the law nor infallible.  There must be a check on their usage of this data.

Currently, many police departments lack any formal policies and procedures to guide their use of the data collected.  This is clearly problematic.  Uniform policies and procedures must be established across the Commonwealth; and regular testing and reviews must be conducted to ensure compliance.  A good example to follow is Brookline.  As noted in the article: Brookline’s policy prohibits using camera scanners to intimidate or harass, to infringe free speech, or to conduct discriminatory surveillance based on race, gender, sexual orientation, disability, or other protected characteristics. The Brookline policy also requires civilian oversight and biannual audits for the town’s camera scanner system, which will be online within the next two months ….”

This technology is a boon to law enforcement.  It can and should be utilized, but it must be closely monitored and scrutinized with the utmost deference to the right to privacy.

New Facebook Friend? Be Careful or You Might Find Yourself Served!

Written by Muthena Alsahlani and Edited By Wassem M. Amin

Social networking site likes Facebook and Twitter play a significant role in society and in most people’s daily life. So big, in fact, that a court ruled that Service of Process via Facebook is permissible under Federal Rules of Civil Procedure 4(f) .

Facts of the Case

The Defendants allegedly operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. This scheme was operated in large part out of call centers located in India.

The U. S. District Court of Southern District of New York issued a temporary restraining order on the defendants’ business practices. On September 27, 2012, the Federal Trade Commission (FTC) submitted the Summons, Complaint, and related documents to the Indian Central Authority for service on defendants, in accordance with Federal Rule of Civil Procedure 4(f)(1) and The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention” or “Convention”). The FTC also sent these documents to defendants by three alternative means: (1) by email to defendants’ known email addresses; (2) by Federal Express (“FedEx”); and (3) by personal service via a process server.

The FTC moved for leave to effect service by alternative means, mainly email and Facebook, on five of the defendants. The defendants sought a preliminary injunction to prevent this method of service.

Holding

The District Court enjoys discretion of whether to order service of process under Rule 4(f)(3) . Both the United States and India are signatories to the Hague Service Convention, mentioned in Rule 4(f). Article 10 of the Hague Convention allows for service of process through alternative means, provided the destination state does not object to those means. Thus far, service by email and Facebook are not among the means listed in Article 10 and India has not specifically objected to them. As well, service via email comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.

The District Court noted that if the plaintiff proposed serving the defendants only through Facebook, without a supplemental form of service, then a substantial question of due process would arise. However, the FTC’s proposal does not suffer that defect. The FTC proposes service via Facebook in conjunction with traditional email. The plaintiffs were able to establish that the Facebook accounts identified are actually operated by the defendants. Thus, there is a likelihood that the message will be received.

Important to note that Facebook is routinely used to serve claims in Australia, New Zeland, and Britain to a lesser extent.

Implications

Foreign defendants can be served process via Facebook, in addition to email, provided that the message will likely reach its intended target, under Fed. Rule of Civil Procedure 4(f). The Court did not that “[H]istory teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

It’s only natural to wonder: will this open the door for an eventual change in Federal Rule of Civil Procedure, which applies to service of process for defendants residing in the U.S.? It’s plausible the traditional rules of service may evolve in order to appropriately reflect the technological shift. Electronic service is more effective and the more common mode of communication in many respects. The challenge, of course, is establishing receipt or acknowledgment of electronic service. Given the struggles of the U.S. Postal Service and the uncertain future of traditional mail, there may not be an option but to evolve and accommodate.

US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)

Supreme Court Continues Trend of Protecting Individual Fourth Amendment Rights

imagesOn February 19, 2013, in Bailey v. United States, the Supreme Court issued an opinion limiting police officer’s authority to detain an individual incident to the execution of a search warrant.  The decision is another example in recent history of the Supreme Court’s refusal to limit the Fourth Amendment.

Facts

While police were preparing to execute a warrant to search a basement apartment, detectives conducting surveillance in an undercover police vehicle located outside the apartment observed two individuals leave the gated area above the apartment, get in a car and drive away.  The detectives waited for the men to leave and then followed the car approximately a mile before stopping it.  Keys to the apartment were found on the petitioner who initially informed police that he resided in the apartment before denying it when informed of the search.  The District Court denied the defendant’s motion to the apartment key and statements he made to the detectives under Michigan v. Summers (1).  The Second Circuit affirmed the decision and the Supreme Court granted certiorari.

History

The Fourth Amendment provides the right of every citizen to be secure in their persons against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.  A general rule on the Fourth Amendment is that Fourth Amendment seizures are “reasonable” only if based upon probable cause “to believe that the individual has committed a crime.  In Michigan v. Summers, the Supreme Court established an exception to this general principle and defined an important category of cases in which detention is allowed without probable cause to arrest for a crime.  The rule established in Summers, is that the law permits officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.”  This rule is unique as it extends farther than other exceptions to the Fourth Amendment in that it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.

In Summers and the cases that followed, the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant.  However, in the present case petitioner left the apartment before the search began and the police officers waited to detain him until he was almost a mile away.  Thus, the Court must decide whether the reasoning the Court used in Summers can justify detentions beyond the immediate vicinity of the premises being searched.

When Summers was decided, the Court reasoned that there were three important law enforcement interests that justify detaining an occupant who is on the premises during the search warrant’s execution.  (1) The safety of the officers and the need to detain the current occupants so they can search without fear that the occupants will become dangerous or frustrate the search.  (2) The facilitation of the completion of the search, if an occupant is free to move around during the search they may potentially obstruct the search or destroy evidence.  (3) The interest in preventing the flight of the occupants.

Analysis

The Court addressed all three interests established in Summers and applied the facts of the present case to those interests.  The first interest, officer safety, was not at risk because petitioner was away from location of the search and further, he was not even aware that a search was being conducted.  Additionally, if he had returned to the scene and did pose a threat, he would have been able to be lawfully detained because he was on the premises.  Addressing the second interest regarding the facilitation of the search, an individual who is not on the premises when the search is being conducted cannot obstruct a search or destroy evidence.  Finally, in addressing the concern of potential flight, the court said that if law enforcement is able to use flight as an excuse to apprehend occupants without any limitations, a suspect may be able to be seized 10 miles or further away from their house.  The Court then quoted a former Supreme Court case saying “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” (2)

The Court also emphasized the fact that the intrusion on personal liberty of a detention away from the premises of one’s home is significantly greater than the intrusion on an individual’s liberty while they are on their premises or inside their home.  When someone is apprehended in their yard or even inside their home, it does not raise the level of the public stigma or indignity associated with the search of the home itself.  However, when one is detained away from their home there is an additional level of intrusiveness.  Even if it is not an arrest it will appear to the public as a full-fledged arrest.  This is another important reason why the decision the Court established in Summers, must be limited and not used by law enforcement as a vehicle to apprehend occupants of a home even if they are not at their home during the search.

(1)    Michigan v. Summers, 452 U.S. 692 (1981)

(2)    Mincey v. Arizona, 437 U.S. 385, 393 (1978)