“If the Phone Is for Me, I Ain’t Here!”

by R. Morgan Briggs, Issue Editor

Introduction

Can the government use your cell phone data to track you without a warrant? That question currently is before the United States Supreme Court in United States v. Carpenter—a criminal case appealed from the United States Sixth Circuit Court of Appeals.[1] Timothy Carpenter was convicted of violating the Hobbs Act[2] on nine counts of armed robbery.[3] At trial, the government used approximately four months of “transactional phone records” obtained from Carpenter’s wireless carrier to show that he was near the robberies about the time they occurred.[4] The Sixth Circuit upheld Carpenter’s conviction and found that obtaining phone records showing Carpenter’s approximate location was not a search under the Fourth Amendment.[5]

As a business practice, wireless carriers typically log and store certain records about their customers’ phone calls, including the date, time, and duration of each call and the cell-sites where each call begins and ends.[6] Cell phones function by establishing a radio connection with nearby cell towers.[7] They constantly search for the strongest tower signal.[8] In urban areas, each cell tower typically covers a one-half mile to two-mile area.[9] Cell towers project different radio frequency signals in different directions.[10] So a phone connecting on one side of a tower will use a different signal than a phone simultaneously connected on the opposite side of that same tower. The data identifying the tower and signal that the phone connects to is called the cell-site location information (“CSLI”).[11]

To obtain Carpenter’s CSLI, the Federal Bureau of Investigation (“FBI”) asked a federal magistrate judge[12] to order the CLSI’s release under the Stored Communications Act. The Stored Communications Act allows the government to obtain telecommunications records, without a probable cause warrant, when the government provides a judge with “specific and articulable facts . . . that there are reasonable grounds to believe that the . . . records . . . are relevant and material to an ongoing criminal investigation.”[13] The FBI asserted that Carpenter’s phone records would provide evidence that he violated the Hobbs Act.[14] Satisfied that sufficient facts existed to reasonably believe that the phone records were relevant and material to the FBI’s criminal investigation, the magistrate judge ordered Carpenter’s service provider to provide his CLSI.[15] Using Carpenter’s CSLI to convict him, the FBI demonstrated that Carpenter was within a one-half mile to two miles of several robberies when they occurred.[16] Since his CSLI was obtained without a probable cause warrant, Carpenter argues that his conviction should be set aside because the FBI committed an unreasonable warrantless search, violating the Fourth Amendment.[17]

I. When Is a Search Not a “Search?”

To say that the Supreme Court’s Fourth Amendment jurisprudence is something less than crystal-clear would surprise no law student.[18] The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]”[19] The Supreme Court has recognized that the Fourth Amendment was historically understood to “embody a particular concern for government trespass” upon persons, houses, papers, and effects.[20] Government trespasses upon these protected areas typically are a search.[21]

In Katz v. United States, Justice Marshall Harlan wrote a concurring opinion and opined that the Constitution also protects people from searches that violate a “reasonable expectation of privacy.”[22] This interpretation subsequently was adopted by the Supreme Court.[23] So when society recognizes that a subjective expectation of privacy is reasonable, government intrusion upon that expectation is a search.[24]

Nevertheless, Supreme Court jurisprudence provides that no legitimate expectation of privacy exists, and thus no Fourth Amendment protection exists, for information volunteered to third parties.[25] By revealing information to a third party, the Supreme Court reasoned, a person assumes the risk that the third party may reveal her information to the government.[26] This notion often is called the “third-party doctrine.”[27] This doctrine applies even if the person believed that the third party would not reveal the information to anyone.[28]

II. No Search or a Search Within Reason?

Carpenter contends that the Fourth Amendment requires a probable cause warrant before the government can obtain his “longer-term cell site location information.” [29] More specifically, Carpenter argues that a Fourth Amendment “search” occurs when the government effectively tracked him for 127 days.[30] According to Carpenter, longer-term CSLI is a “private paper” protected by a reasonable expectation of privacy.[31] Therefore, Carpenter argues that warrantless searches of long-term CSLI are unreasonable and prohibited by the Fourth Amendment.[32]

The government asserts that obtaining business records from a service provider simply is not a Fourth Amendment search.[33] The government argues that Carpenter cannot expect privacy regarding his locational information because he voluntarily gave it to his service provider.[34] Further, assuming that obtaining long-term cell-site records is a Fourth Amendment search, the government maintains that obtaining the data under the Stored Communications Act is reasonable under the Fourth Amendment.[35]

The government argues that if Americans want to restrict governmental intrusions upon their privacy, they may, through Congress, restrain the government.[36] The government contends that the Stored Communications Act is Americans’ desired balance between the want for privacy and the need for effective law enforcement.[37] That is, requiring only specific and articulable facts, something less than traditional probable cause, to obtain CSLI but ensuring that an independent determination by a federal judge checks unbridled governmental discretion.[38]

III. The Ball Is Now in the Supreme Court.[39]

No one can predict precisely what the United States Supreme Court will decide in every case it considers.[40] But if the Court looks to the Circuit Courts of Appeals and district courts for guidance, the future does not bode well for privacy advocates. Of the six federal circuits to consider the propriety of obtaining CSLI without a warrant, none have found it unconstitutional.

The Fourth,[41] Fifth,[42] Sixth,[43] Tenth,[44] and Eleventh[45] circuits hold that obtaining CSLI from a service provider is not a search under the Fourth Amendment. Although the Third Circuit found that a cell phone user does not voluntarily share her location with her service provider, it nevertheless held that “CSLI from cell phone calls is obtainable under a § 2703(d) order and that such an order does not require the traditional probable cause determination.”[46] Further, most federal district court judges to consider the issue found that CSLI orders under the Stored Communications Act are constitutional.[47]

If the lower courts largely are unified in upholding CSLI orders under the Stored Communications Act, the following question is presented: why did the Supreme Court grant certiorari? LSU Law Professor Edward P. Richards[48] doubts that the Court will choose this case to fundamentally alter the traditional third-party doctrine because an independent judicial determination by the magistrate judge was required as a check on unbridled government discretion.[49] Instead, he believes this case presents an opportunity for the Court to encourage Congress to make meaningful changes to the law. Recognizing that Congress sometimes fails to address issues acknowledged by the Court, Professor Richards notes that, in the past, Congress amended Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) to curtail the government’s right to engage in bulk data collection.[50]

The United States Supreme Court might not be the final battleground for privacy concerns in Louisiana. If privacy advocates are dissatisfied with the Supreme Court’s decision, they may argue that CSLI nevertheless is protected by Louisiana’s Constitution. Louisiana’s Constitution protects “person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.”[51] Louisiana’s Supreme Court has recognized that this provision is not merely a regurgitation of the Fourth Amendment but is “one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution.”[52] In certain cases, Louisiana’s Constitution may protect Louisianans’ privacy more strongly than the United States Constitution.[53] In any event, the tension between privacy interests and legitimate governmental concerns in a modern technological era will endure for the foreseeable future.

 

[1] Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016), cert. granted, 137 S. Ct. 2211 (June 5, 2017) (No 16-402).

[2] 18 U.S.C. § 1951 (2012). The Hobbs Act prohibits robbery affecting interstate commerce. Id.; see also The Hobbs Act, U. S. Dept. of Justice, https://www.justice.gov/usam/usam-9-131000-hobbs-act-18-usc-1951 (last visited Oct. 11, 2017) (discussing the Hobbs Act) [https://perma.cc/EY3W-V6P8].

[3] See United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016).

[4] Brief for Petitioner at 8, United States v. Carpenter, 137 S. Ct. 2211 (2017) No. 16-402.

[5] See Carpenter, 819 F.3d at 890 (6th Cir. 2016).

[6] Providers keep these records for business purposes, including to find weaknesses in their networks and apply roaming charges. Brief for the United States at 3, United States v. Carpenter, 137 S. Ct. 2211 (2017) No. 16-402.

[7] Id. at 2.

[8] Id.

[9] Id.

[10] See id.

[11] See, e.g., Brief for Petitioner, supra note 5, at 3.

[12] United States Magistrate Judges are judicial officers appointed to eight year terms by a majority vote of district court judges. See 28 U.S. Code § 631. The Magistrate Judge exercises jurisdiction over matters authorized by statute, delegated by the district court judge, or consented to by the parties.

[13] 18 U.S.C. § 2703(d).

[14] United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016).

[15] See id.

[16]Id. at 885. The records obtained in this case spanned 127 days, revealing 12,898 separate points of location data. Id. at 886. Notably, CSLI is less precise than GPS location information. CSLI might be too imprecise to show “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring) (quoting People v. Weaver, 909 N.E.2d 1195, 1999 (N.Y. 2009)). But CSLI does allow the government to see if you have been in the neighborhood.

[17] See Carpenter, 819 F.3d at 884.

[18] See Illinois v. Caballes, 543 U.S. 405, 408 (2005) (finding that a narcotics-detection dog sniffing a car is not a “search” under the Fourth Amendment because there is no “legitimate privacy interest” in illegal cannabis trade). In an amicus brief supporting Carpenter, the Cato Institute critiques the Caballes holding: “Possession of drugs being illegal, there is no legitimate expectation of privacy in their possession. Thus, a search aimed at illegal drugs is not a search. That’s confounding.” Brief for the Cato Institute as Amicus Curiae in Support of Petitioner at 15, United States v. Carpenter, No. 16-402. But see Kyllo v. United States, 533 U.S. 27 (2001) (using thermal-imaging cameras to detect infrared radiation emitted from a home, for the purpose of detecting illegal cannabis growing, is a “search”).

[19] U.S. Const. amend. IV.

[20] Jones, 565 U.S. at 406.

[21] See id. Agents physically installing a GPS tracking device on a Jeep is a Fourth Amendment search. Id. at 404.

[22] Katz v. United States, 389 U.S. 347, at 360–61 (Harlan, J., concurring).

[23] See, e.g., Bond v. United States, 529 U.S. 334, 338 (2000) (“Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy . . . Second, we inquire whether the individual’s expectation of privacy is ‘one that society is prepared to recognize as reasonable.’”) (internal citations omitted); California v. Ciraolo, 476 U.S. 207, 211 (1986) (“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’”) (citing Katz, 389 U.S. at 360 (Harlan, J., concurring)); Smith v. Maryland, 442 U.S. 735, 740 (1979) (“[T]his Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.”).

[24] See Smith, 442 U.S. at 740.

[25] See, e.g., id. at 743–44. Cf. Hoffa v. United States, 385 U.S. 293, 302 (1966) (upholding Jimmy Hoffa’s conviction based on a government informant’s testimony because “[n]either this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”).

[26] United States v. Miller, 425 U.S. 435, 443 (1976) (finding no expectation of privacy in bank records generated by the bank).

[27] See, e.g., United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016).

[28] See Miller, 425 U.S. at 443. If this logic is extended to reach modern communication, then arguably no reasonable expectation of privacy exists concerning any unencrypted electronic message sent via third party. Justice Sotomayor is concerned that the third-party doctrine may be an improper standard in the modern era. See U.S. v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”) (citations omitted).

[29] Brief for Petitioner, supra note 5, at 14.

[30] Id. at 10.

[31] Id. at 11.

[32] Brief for Petitioner, supra note 5, at 13.

[33] Brief for the United States, supra note 7, at 11.

[34] Id. at 11.

[35] Id. at 50.

[36] See U.S. v. Jones, 565 U.S. 400, 429–30 (2012) (Alito, J., concurring) (“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”) (internal citation omitted). This argument has been accepted by some federal circuits. See United States. v. Carpenter, 819 F.3d 880, 889 (6th Cir. 2016) (“Congress has specifically legislated on the question before us today, and in doing so has struck the balance reflected in the Stored Communications Act. The Act stakes out a middle ground between full Fourth Amendment protection and no protection at all, requiring that the government show “reasonable grounds” but not “probable cause” to obtain the cell-site data at issue here.”); U.S. v. Graham, 824 F.3d 421, 437 (4th Cir. 2016) (“[T]he Stored Communications Act (SCA), demonstrates that Congress can—and does—make these judgments. . . . It requires the executive to obtain judicial approval, as the Government did here, before acquiring even non-content information.”).

[37] Brief for the United States, supra note 7, at 53.

[38] See 18 U.S.C. § 2703(d).

[39] An interesting aside, there is a basketball court on the fifth floor of the United States Supreme Court building. This arena is aptly named “The Highest Court in the Land.” See Elizabeth Nix, 7 Things You Might Not Know About The U.S. Supreme Court, History (Oct. 8, 2013), http://www.history.com/news/history-lists/7-things-you-might-not-know-about-the-u-s-supreme-court [https://perma.cc/E6R6-F4EC].

[40] If you believe anyone has this prescient power, I have a red-light to sell you in Grant Parish.

[41] Graham, 824 F.3d at 426 (“[T]he question before us is whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information. . . . [T]he cases that establish the third-party doctrine provide the answer.”).

[42] In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) (“Section 2703(d) orders to obtain historical cell site information for specified cell phones at the points at which the user places and terminates a call are not categorically unconstitutional.”) (emphasis in original).

[43] United States. v. Carpenter, 819 F.3d 880, 887–89 (6th Cir. 2016) (holding that defendants have no legitimate expectation of privacy in cell-site location information recorded by a third party).

[44] United States v. Thompson, 866 F.3d 1149, 1158 (10th Cir. 2017) (“[W]e focus on the narrow question before us: whether Thompson has a reasonable expectation of privacy in his historical CSLI. . . . [W]e hold he does not.”).

[45] United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc) (“Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls.”).

[46] In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n. Serv. to Disclose Records to Gov’t., 620 F.3d 304, 313 (3d Cir. 2010).

[47] See, e.g., United States v. Wheeler, 2016 WL 1048989, at *11–13 (E.D. Wis. Mar. 14, 2016) (Pepper, J.); United States v. Dorsey, 2015 WL 847395, at *8 (C.D. Cal. Feb. 23, 2015) (Snyder, J.); United States v. Shah, No. 13–328, 2015 WL 72118, at *7–9 (E.D.N.C. Jan. 6, 2015) (Flanagan, J.); United States v. Banks, 52 F.Supp.3d 1201, 1204–06 (D. Kan. 2014) (Crabtree, J.); United States v. Rigmaiden, No. 08–814, 2013 WL 1932800, at *14 (D. Ariz. May 8, 2013) (Campbell, J.). But see In re Application for Tel. Info. Needed for a Criminal Investigation, 119 F.Supp.3d 1011, 1026 (N.D. Cal. 2015) (Koh, J.) (“[T]he Court concludes that cell phone users have an expectation of privacy in the historical CSLI . . . and that society is prepared to recognize that expectation as objectively reasonable.”).

[48] Professor Richards received a J.D. from Houston Law in 1978 and a Master of Public Health in disease control from the University of Texas School of Public Health in 1983. Professor Richards currently teaches Cybersecurity and Counterterrorism, Administrative Law, Intro to Environmental Law, and Climate Change Law. For additional information about professor Richards, see Edward P. Richards, LSU Law, https://www.law.lsu.edu/directory/profiles/edward-p-richards/ (last visited Oct. 25, 2017) [https://perma.cc/47Q9-BGUE].

[49] See United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016).

[50] See generally 702, U.S. House of Representatives Permanent Select Committee on Intelligence, https://intelligence.house.gov/fisa-702/ (last visited Nov. 7, 2017) [https://perma.cc/X323-ZLE2].

[51] La. Const. art. I, § 5.

[52] State v. Hernandez, 410 So.2d 1381, 1385 (La.1982). For further academic discussion of the history of Article 1, § 5 of Louisiana’s Constitution, see Lee Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L. Rev. 1, 20 (1974).

[53] See, e.g., Hernandez, 410 So.2d at 1385.

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