“3rd Circuit: Probable Cause May Be Needed for Cell Phone Location Data”

3rd Circuit: Probable Cause May Be Needed for Cell Phone Location Data

Posted: 07 Sep 2010 09:08 PM PDT

Shannon P. Duffy

In the first appellate ruling on a cutting-edge privacy issue, the 3rd U.S. Circuit Court of Appeals has declared that cell phone location data may trigger Fourth Amendment concerns and that prosecutors demanding access to such records may be required at times to satisfy a probable cause standard.

The ruling in In re Application of the USA - Electronic Communication Service (pdf) is a setback for the Justice Department, which had argued that judges are required under §2703 of the Stored Communications Act to issue orders for access to such data whenever prosecutors show that it would be "material" and "relevant" to an ongoing investigation.

But the appellate court's ruling also reversed a decision by U.S. Magistrate Judge Lisa Pupo Lenihan of the Western District of Pennsylvania that said §2703 didn't apply and that prosecutors must always show probable cause to access such data.

Instead, the appellate court largely adopted the position espoused by a coalition of civil rights and privacy groups who, in an amicus brief, argued that although the records are covered by §2703, judges must be free to decide when to demand that prosecutors satisfy the probable cause standard.

"Because the statute as presently written gives the magistrate judge the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly," U.S. Circuit Judge Dolores K. Sloviter wrote in an opinion joined by Judge Jane R. Roth and partly joined by visiting 9th Circuit Judge A. Wallace Tashima.

The ruling was hailed as an important protection of privacy rights by professor Susan Freiwald of the University of San Francisco School of Law, an expert in the area of privacy and technology, who filed her own amicus brief and was one of two lawyers arguing against the government.

Freiwald said that while the 3rd Circuit reversed the lower court's ruling, the larger importance of the appellate court's decision was the panel's rejection of the Justice Department's reading of the statute as well as the government's arguments about the modern-day implications of two significant decisions from the U.S. Supreme Court in the 1970s.

At issue in the case is data, termed CSLI (for "cell site location information"), that are recorded about once every seven seconds whenever a cell phone is turned on, and can be used to effectively track the whereabouts and the comings and goings of any cell phone user.

Ordinarily, the behind-the-scenes mechanics of criminal investigations are invisible to the public, and prosecutors obtain orders for access to such data without any public scrutiny.

But in February 2008, Lenihan publicly issued a 52-page opinion that said the prosecutors must meet the "probable cause" standard whenever they demand CSLI.

"This court believes that citizens continue to hold a reasonable expectation of privacy in the information the government seeks regarding their physical movements/locations -- even now that such information is routinely produced by their cell phones -- and that, therefore, the government's investigatory search of such information continues to be protected by the Fourth Amendment's warrant requirement," Lenihan wrote.

The issue went public because Lenihan declared that her opinion "shall not be sealed because it is a matter of first impression in this district and circuit on issues concerning the statutory and Constitutional regulation of electronic surveillance which do not hinge on the particulars of the underlying investigation."

In a show of unanimity, the opinion was also signed by all four of the other magistrate judges in the Western District of Pennsylvania -- Susan Paradise Baxter, Francis X. Caiazza, Amy Reynolds Hay and Robert C. Mitchell -- and U.S. District Judge Terrence McVerry later issued a three-page order that affirmed Lenihan's opinion.

Lenihan ruled that prosecutors must meet a probable cause test when seeking cell phone location data because such information "is extraordinarily personal and potentially sensitive."

Under a lower standard, Lenihan said, the data would be "particularly vulnerable to abuse" because of the ex parte nature of the proceedings and the "undetectable nature" of the cell phone service provider's compliance with such an order.

In a lengthy section of the opinion, Lenihan described the quickly evolving technology.

"Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called 'registration,' occurs approximately every seven seconds," she wrote.

Lenihan concluded that the data sought by the prosecutor amounted to "tracking information," and that Congress clearly intended to require prosecutors to meet a probable cause test to secure such data.

On appeal, the Justice Department argued that Lenihan got the issues wrong because the statutes clearly allow the government to require "a provider of electronic communication service" to disclose "a record or other information pertaining to a subscriber."

Now the 3rd Circuit has sided with the Justice Department on the threshold question and ruled that Lenihan must be reversed on her holding that the data isn't covered by the statute.

"We hold that CSLI from cell phone calls is obtainable under a Section 2703(d) order and that such an order does not require the traditional probable cause determination," Sloviter wrote.

Lenihan erred, Sloviter said, "in allowing her impressions of the general expectation of privacy of citizens to transform that standard into anything else."

But Sloviter also described the government's position as "extreme" and said she was "puzzled" by the government's argument that it would be unable to secure warrants.

"In our experience, magistrate judges have not been overly demanding in providing warrants as long as the government is not intruding beyond constitutional boundaries," Sloviter wrote.

Sloviter also flatly rejected the government's arguments stemming from two U.S. Supreme Court decisions from the 1970s which, prosecutors said, showed that the Fourth Amendment is never triggered by information that is voluntarily shared with phone companies, such as records of numbers dialed.

"A cell phone customer has not 'voluntarily' shared his location information with a cellular provider in any meaningful way," Sloviter wrote. "... It is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information."

Subscribe to The Legal Intelligencer

This entry passed through the Full-Text RSS service — if this is your content and you're reading it on someone else's site, please read our FAQ page at fivefilters.org/content-only/faq.php
Five Filters featured article: "Peace Envoy" Blair Gets an Easy Ride in the Independent.