In a case involving whether law enforcement officials need a warrant to obtain cell-site information on the location of mobile device users, the Justice Department has told the Supreme Court that the government’s acquisition of cell-site records from wireless service providers “did not constitute a Fourth Amendment search” of the cell-phone customer in question.

The Supreme Court agreed in June to review the decision of the Sixth Circuit Court of Appeals (Cincinnati), which had ruled 2-1 that a warrant is not needed under the Fourth Amendment for the government to obtain access to historical cell-site location information (CSLI) (TR Daily, June 5).

Law enforcement authorities had obtained cellphone location records from carriers in making a case against Timothy Carpenter related to a string of robberies which they said he organized.  They had obtained records for 127 days that revealed 12,898 location data points for Mr. Carpenter.

In a brief filed with the Supreme Court in “Carpenter v. United States” (case 16-402), the Justice Department said, “Petitioner has no legitimate expectation of privacy in the business records his providers made of the cell towers used to route calls to and from his cell phone. This Court has long held that an individual cannot invoke the Fourth Amendment to object to the government’s acquisition of a third party’s records that contain information about the individual.”

The department argued that the “third-party doctrine” applies in this case, that is, the idea that a party generally has no expectation of privacy in information revealed to or known by a third-party.

“Cellphone users are aware that they must be in a tower’s coverage area to use their phones, and they must understand that their provider knows the location of its own equipment and may make records of the use of its towers. And any subjective expectation of privacy would not be objectively reasonable. Cell-phone users voluntarily reveal to their providers information about their proximity to cell towers so the providers can connect their calls. Users cannot reasonably expect that the providers will not reveal that business information to the government,” the department said.

“Contrary to petitioner’s suggestion, cell-site records are not more sensitive than the records of phone numbers dialed and banking records at issue in Smith [v. Maryland] and [U.S. v.] Miller,” the department added.  “Inferences about location drawn from cell-site information are far less precise than GPS data and do not permit a detailed reconstruction of a person’s movements.  And in any event, the third-party doctrine does not turn on what information the government acquires and how sensitive that information is, but rather on how the government acquires the information. Seeking information about a suspect from a third-party witness does not amount to a Fourth Amendment search of that suspect, no matter how revealing or incriminating the evidence may be.

“Nor was petitioner’s action in conveying information about his proximity to cell towers less ‘voluntary’ than the defendants’ actions in Smith and Miller. In those cases, like this one, individuals were required to reveal information about themselves to use an important service provided by a business that was a ubiquitous part of modern society,” it continued.

The Justice Department disputed the petitioner’s contention that application of the third-party doctrine would allow “unregulated government collection of all information in a third party’s hands, including email. That is incorrect. Email is routed through a provider, and its contents, like those of a sealed letter in the mail, may remain private. But cell-tower information is sent to the provider and used in its own business; it falls within the traditional third-party doctrine.

“Moreover, adherence to the third-party doctrine does not eliminate all constitutional limitations on collection of data. Providers may invoke their own Fourth Amendment rights to object to compulsory process that exceeds legislative authorization, sweeps too broadly, or imposes undue burdens. The sensitivity of customer information may inform that calculus. The First Amendment and equal protection principles also protect against abuses. And if businesses’ possession of great quantities of digital information raises new privacy concerns, legislatures are well positioned to address them,” it continued.

It added, “If the Court concludes that a warrant is required to obtain some cell-site records, it should hold, as petitioner concedes, that requests for short-term cell-site records fall outside that rule. Here, that principle would validate the request for seven days of records from Sprint, as that is well within the range of ordinary visual surveillance of a person suspected of a crime.” —Lynn Stanton, lynn.stanton@wolterskluwer.com

Courtesy TRDaily