Monthly Archives: June 2017

Therewas enormously important Fourth Amendment news from the Supreme Court on Monday: The justices agreed to review the U.S. Court of Appeals for the 6th Circuits decision in Carpenter v. United States, one of the long-pending cases on whether the Fourth Amendment protects government access to historical cell-site records.

This is a momentous development, I think. Its not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case. Let me say a bit about the case, the issues it will decide and why it matters.

I. The Facts of the Case

Carpenter involves a string of armed robberies that occurred over a two-year period. A group of men (at least five of them) would go into cellphone stores armed with guns, order the customers and employees to the back, and steal the phones. Carpenter was the lead organizer of the conspiracy, and he often supplied the guns, acted as a lookout and would signal when each robbery was to begin.

One of Carpenters conspirators confessed to the crime and gave the government his cellphone number and the numbers of the other conspirators (16 numbers total). The government applied for three different court orders for the cell-site records associated with those numbers, which included Carpenters number. Specifically, the orders sought cell site information for Carpenters phone at call origination and at call termination for incoming and outgoing calls. The government obtained the orders under the Stored Communications Act. They complied with the statute, but the statute requires only reasonable suspicion and not probable cause.

The order that covered Carpenter was directed at his cellphone provider MetroPCS. MetroPCS produced 127 days of historical cell-site records. (Sprint produced another seven days of historical cell-site records for Carpenters phone from a time window when he was roaming and Sprint picked up his service instead of MetroPCS.) Together with the orders obtained, the records showed that that the phones of the alleged conspirators were within distances ranging from a half-mile up to two miles of the robberies at the time they occurred. Specifically, Carpenters phone was shown to be in communication with cell towers near four robberies over a five-month window.

II. The Legal Issues

Here is how counsel for the petitioner framed the question presented:

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

And heres how the United States redrafted the question presented in its brief in opposition:

Whether the governments acquisition, pursuant to a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain.

I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?

Notably, neither side sought review of whether the good-faith exception applies if the answer to both of these questions is yes. The parties are asking only for a ruling on the merits, with any remedies decision bifurcated for review on remand if the Supreme Court reverses.

III. Why The Case Matters

The Carpenter case is tremendously important, I think. The structure of modern surveillance law is built on the idea that the contents of communications receive Fourth Amendment protection but that non-content metadata records about communications, and other third-party business records do not. That has been the rule since the 19th century for postal letters, and it has been the rule since 1979 for phone calls. Carpenter will help determine if that basic rule framework will remain, or if the Supreme Court will amend it somewhat or even dramatically change it.

Part of the importance of the case is that its not just about cell-site records. Although the case is formally about cell-site records, its really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies. The justices cant answer how the Fourth Amendment applies to cell-site records without providing a framework for how the Fourth Amendment applies to many other forms of surveillance, such as visual surveillance, obtaining traditional phone records, obtaining e-mail transactional records, obtaining credit card records and the like.

For example, readers will recall the debate over the mosaic theory of the Fourth Amendment. Among the issues likely to be pressed in Carpenter is whether the justices should adopt or reject the mosaic theory. Note that the question presented focuses on the fact that the records covered 172 days. Should the length covered by the records matter? Is evidence collection for a short time window no search that becomes a search because the records spanned a long time window?

Plus, remember that the justices will have two questions: what a search is, and when searches are reasonable. Most will focus on the first question, but note that the two issues go together. As I explained here, the broader the court interprets search, the more pressure there is to water down reasonableness. The narrower the definition of search, the stronger the reasonableness standard tends to be. This creates some interesting dynamics. For example, you might get a ruling that there is no search but that retains the traditional default warrant rule for searches. On the other hand, you might get a ruling that a search occurred but that authorizes a new category of warrantless surveillance. This is just speculation, of course, but I suspect the briefing will urge major doctrinal innovations on both questions.

IV. Why Did the Justices Take the Case?

Some will speculate that the Supreme Court would have taken the case only if it were going to reverse. I have no idea how the court will rule, but I tend to doubt that. If I had to guess, I would guess that the court took these cases because theyre really important. The lower court rulings are based on the third-party doctrine, and none of the current justices were on the court the last time the justices decided a case on the third-party doctrine. Its pretty sensible to have the current Supreme Court weigh in.

As it happens, I think the third-party doctrine is essential to technological surveillance in a digital age. As I see it, the doctrine is needed to maintain the essential balance on which Fourth Amendment law has been built and on which it evolves in response to new technology. Prominent alternatives, like the mosaic theory, strike me as a dead end. But it makes a lot of sense for the justices to review these cases and decide whether they agree and if not, identify what new framework should replace it.

V. Lots of Blogging Ahead

Finally, Ill probably be doing a lot of carpentry (that is, blogging about the issues raised in Carpenter) over the next few months. A lot of my academic work in the past decade has been about issues that touch on the case, so it will be really fun to see what the justices do.

Continue reading here:
Supreme Court agrees to hear 'Carpenter v. United States,' the Fourth Amendment historical cell-site case - Washington Post

The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.

This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.

[T]he district court heldand we affirm, holding that the governments detection of Montai Rileys whereabouts in this case, which included tracking Rileys real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Rileys GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennesseebut only after inquiring of the front-desk clerk did the government ascertain Rileys specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Rileys whereabouts than what Riley exposed to public view as he traveled along public thoroughfares, id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Rileys motion to suppress evidence found upon Rileys arrest.

While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.

The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or pinging of the latitude and longitude coordinates of Rileys phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:

16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subjects mobile device on the service providers network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.

The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone's owner.

No evidence of record indicates whether Rileys phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Rileys phone to cause it to send AT&T its GPS coordinates.

This should have been a warning flag. It's one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still)

But it doesn't. The court goes on to say it doesn't matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That's why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.

In Skinner, we held that location data emitted by a voluntarily procured cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because the defendants movements could have been observed by any member of the public, ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.

But it then goes on to reach a conclusion which seems to contradict the evidence provided.

Using seven hours of GPS location data to determine an individuals location (or a cell phones location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveledbut the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.

The lack of location info particularity should have worked against the government's argument. The court even admits in a footnote the government had no idea where exactly the suspect was located -- only a general idea that he was likely in a publicly-accessible building.

When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precisioneven if the Airport Inn were only one story tallto reveal which room, if any, the phone was in at the time of each ping.

So, it could be argued the government did track the suspect's "movements within a hotel room," which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel's accessibility and the coarse location info as an argument against potential Fourth Amendment violations.

That Riley was arrested in a motel is of no moment, for the government learned no more about Rileys whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby along public thoroughfares, Skinner, 690 F.3d at 774even if Riley meant to keep his location a secret, one cannot expect privacy in ones public movements.

Certainly the arrest was "no moment," but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there's ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.

See the article here:
Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue - Techdirt