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Matter of Release of Historical Cell-Site Information: District Court Requires Warrant for Cell Phone Location Data

Fourth Amendment Privacy Telecommunications

In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 10-MC-897 (E.D.N.Y. Aug. 22, 2011) Slip opinion

The United States District Court of the Eastern District of New York denied the government’s request to order Verizon Wireless to turn over 113 days of customer location data which, according to the government, was relevant to a criminal investigation.

The court held that the Fourth Amendment covered cell phone location data and that law enforcement would need to show probable cause and receive a warrant to access such information. The court decided that cell phone users have a reasonable expectation of privacy that deserves protection from government intrusion. In so holding, the court applied an exception to the third-party-disclosure doctrine that would otherwise give law enforcement access to non-content information (such as location data) that users have already divulged to a third party (such as a service provider), concluding that disclosure of cumulative cell phone location data would be as intrusive as disclosure of the content of cell phone communications.

Ars Technica provides an overview of the case. Techdirt applauds the decision’s protection of cell phone users’ privacy. Wired notes that action by the Supreme Court or the Senate could favor government access over user privacy and limit the effect of the court’s ruling.

The government sought a court order to direct Verizon to disclose 113 days of cell phone location data for one of its customers. The order was submitted pursuant to the Stored Communications Act, which provides that a court can order disclosure of such records if the government shows that the records are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Yet the court determined that the requested cell phone location data constituted “constant surveillance” for 113 days and could be disclosed only if law enforcement received a search warrant by showing probable cause as required by the Fourth Amendment.

In holding as it did, the court relied on a recent decision by the Court of Appeals for the District of Columbia Circuit, United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). Maynard held that law enforcement needed a warrant to track an individual by GPS over the course of an entire month. Though the individual did not have a reasonable expectation of privacy for a single movement from one public place to another, he did have a reasonable expectation of privacy over the totality of his movements during an entire month. The Eastern District of New York reasoned that the constitutional concerns regarding cell phone location data were greater than those regarding GPS data, because cell phone information posed a risk of mass surveillance while GPS tracking targeted a single individual.

The court also rejected the application of the third-party-disclosure doctrine, which holds that there can be no reasonable expectation of privacy for information that a person voluntarily turns over to third parties. While noting that some case law supports the proposition that cell phone users have no reasonable expectation of privacy because they have voluntarily given information to their service provide by turning on their phone, the court held that normative privacy concerns support the conclusion that location data is private. However, the court limited this exception to the third-party-disclosure doctrine to instances in which the information was provided to a service-provider intermediary whose storage of such information is incidental to service, thus keeping the third-party-disclosure doctrine largely intact.

The court’s opinion surveyed the conflicting case law on whether a request for cell phone location data constitutes a search and whether any cell phone user’s expectation of privacy was negated by third-party disclosure, and came down strongly on the side of cell phone users’ privacy. While the court aligned itself with the DC Circuit in requiring a showing of probable cause for disclosure of prolonged electronic location data, the decision may do little to tip the scales in the debate over privacy and location tracking. Upcoming developments in the law might provide greater clarity: first, the Supreme Court is set to weigh in on the issue when it reviews the DC Circuit’s decision later this year (under the caption United States v. Jones), and second, as Wired reports, proposed legislation, if passed, would require a warrant for some stored electronic content but would not require a warrant for past cell phone location data.

Michael Hoven is a 2L at Harvard Law School.