Dalmacio V. Posadas, Jr, a graduate of Loyola Law School, lives in Los Angeles, California, and is currently a judicial law clerk in the Central District of California.
The question presented in United States v. Carpenter addresses a narrow issue of law: 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. The case raises questions concerning the Stored Communications Act’s (“SCA”) standard for obtaining a court order to retrieve historical cell site location information (“CSLI”), which is lower than the Fourth Amendment’s probable cause requirement. Undoubtedly, related doctrine, like the third-party exception to the warrant requirement, is also implicated in the case.
In anticipation of the Supreme Court’s opinion in United States v. Carpenter, we ask whether the Court will address cell tower dumps. Even assuming that the Court addresses related doctrines, will the Court provide sufficient guidance for the divided lower courts with respect to cell tower dumps? As it stands, many issues discussed in, but not dispositive of, for example, the holdings in United States v. Jones or Riley v. California, continue to be relied on by the lower courts, further complicating privacy issues surrounding the Fourth Amendment. Until the legislature steps in to update statutes like the SCA, as courts have urged, the Courts will continue to deliver narrow holdings on specific issues in order to cobble together a cogent body of law to protect individual privacy and provide clear guidance for law enforcement in a Sisyphean quest to keep pace with evolving technology.
The SCA, 18 U.S.C. § 2703(c), permits disclosure of historical CSLI. To obtain an order for information listed under the SCA, the government needs only a subpoena. However, to obtain a broader category of information, the government must provide “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records of other information sought, are relevant and material to an ongoing criminal investigation.” According to a majority of the lower courts, this standard of “‘specific and articulable facts is all that is required’ and no more.”
It has become acceptable practice in many District Courts for the government to request an order to compel cellular service providers to produce historical CSLI from cell site towers without a finding of probable cause, as permitted under the SCA. Generally, the law in many lower courts has developed to support this practice because the individual user does not have an expectation of privacy in his or her CSLI because the user has chosen to share his or her CSLI with the third-party cellular service provider. However, does this idea of the third-party doctrine break down when the government seeks historical CSLI from cell site towers for a specific time frame and without a target user—otherwise known as cell tower dumps?
During oral argument in United States v, Carpenter, Justice Sotomayor asked Nathan F. Wessler of the ACLU, representing Carpenter, if the police could “just get a tower dump of the cell site to see who was in that area at that time?” Wessler responded that a tower dump “would not be affected at all” by this case. Although Justice Sotomayor attempted to clarify the distinction between collecting individual data on a targeted individual and a tower dump, the Justice and Wessler ultimately focused this line of inquiry onto the permissible duration of peering into an individual’s data.
Assuming that the Supreme Court does not address the so-called cell tower dumps in its opinion, the lower courts may be left to wrestle with the lingering issues unresolved by the question presented in United States v. Carpenter.
The Majority: District Courts Do Not Apply The Fourth Amendment To The SCA
The issues that have beset recent District Court orders, with respect to cell tower dumps, are the implications it has on innocent cellular subscribers’ Fourth Amendment rights. Some courts have found that, while the standard for a court order to compel a cellular provider is lower than probable cause per § 2703(d), targeted cellular subscribers and those non-targeted cellular subscribers affected by broad cell tower dumps still retain traditional Fourth Amendment protection. On the other hand, many more courts have found that even non-targeted subscribers do not have a reasonable expectation of privacy because they voluntarily offer their personal information to providers and are generally not afforded a reasonable expectation of privacy under the third-party doctrine exception to the Fourth Amendment.
Many of the District Courts seem to follow this reading of the SCA with respect to non-targeted subscribers. In the Southern District of Texas, Magistrate Judge Stephen WM. Smith held that orders under the SCA for historical cell site records did not violate the Fourth Amendment rights of those non-targeted subscribers whose cellular data was inadvertently gathered during these disclosures. In its application, the government did not specify a phone number or the specific identity of the suspect they were targeting thus rendering every cellular subscriber who pinged off of the targeted tower susceptible to their data being gathered. These are non-targeted subscribers who are dragged into a cell tower dump. The Magistrate Judge reasoned that the standard under the SCA, which requires specific and articulable facts, was properly applied in the government’s application for the cell tower dump. The Court ordered “seven different cell phone service providers to release historical cell tower data for specific towers providing service to a crime scene within Houston city limits at the hour of the crime.”
In his reasoning, the Magistrate Judge found that the cell site records were “ordinary business records” and thus the non-target subscribers had no reasonable expectation of privacy. The Magistrate Judge’s decision was based, in part, on In re Application of the United States for Historical Cell Site Data, which held that orders for historical cell site records did not violate the Fourth Amendment rights of those non-target subscribers. The Fifth Circuit applied the standard under the SCA, which requires “specific and articulable facts: rather than the Fourth Amendment probable cause standard to compel providers to produce historical cell site information of their subscribers.”
The Fifth Circuit relied on the Dictionary Act to interpret the statute as applicable to anyone plural rather than just one single customer—essentially, that an applicant under the SCA may search a cell site tower’s historical CSLI without a specified target suspect. However, the Fifth Circuit took issue with the duration of the search—limiting the original application from one hour and granting the application for ten minutes. “[I]n order to receive such data, the Government at a minimum should have a protocol to address how to handle this sensitive private information.”
Magistrate Judge Smith also cited an order from the Southern District of New York, expressly contravening Magistrate Judge Brian Owsley of the same district on the same matter. In a law review article, Magistrate Judge Owsley explained that historical CSLI is “even more accurate” than GPS tracking. Magistrate Judge Owsley discussed a cell tower dump in rural Arizona where the FBI obtained 150,000 telephone numbers of “innocent” non-targeted cellular subscribers. Often overlooked, cellular service providers receive a handsome fee for providing historical CSLI to the government. “Even U.S. Cellular, a small provider, reported earning $460,000 in fees from providing data in response to law enforcement requests,” where larger providers, like AT&T, collect millions of dollars in annual fees. But this is beyond the present scope.
In the Southern District of New York, Magistrate Judge James C. Francis relied on the third-party doctrine to find that non-target subscribers did not have a reasonable expectation of privacy, however, the court required the government to “outline a protocol to address how the Government will handle the private information of innocent third-parties whose data is retrieved.” This was also a case where the government did not have a target cellphone or specific information on a target individual; rather, this was a cell tower dump.
District Judge William Q. Hayes of the Southern District of California found that “[t]he historical cell site location records are the business records of the provider and not entitled to protection under the Fourth Amendment.” Notably, the Government had the identity and cellphone number of the suspect, which they tracked for nearly two months.
In the Central District of California, District Judge Christina A. Snyder found that “[g]iven the still evolving state of the law and the Supreme Court’s forthcoming resolution of this question, the Court declines to address whether CSLI is entitled to Fourth Amendment protection. Rather, the Court concludes that—even if the Fourth Amendment protects the historical CSLI at issue in this case—the evidence is admissible under the good faith exception to the exclusionary rule.” However, Judge Snyder found previously that the Fourth Amendment does not apply under the SCA, and that the government is not required to show probable cause. Nevertheless, the government had a target cellular number, had other corroborative facts to suggest that the target cellular subscriber was in the area where the government requested the CSLI.
It is difficult to argue that cell tower dumps should be prohibited under the Fourth Amendment when the government provides a target cellular number. One the one hand, the government has sufficient facts in order to present probable cause to seek a warrant or to receive a 2703(c) order. On the other hand, there are still potentially hundreds of thousands of innocent cellular subscribers who lose Fourth Amendment protection from a single cell tower dump in order to further the government’s criminal investigation. As we will discuss further below, it seems easy to disregard the latter argument because the infringement seems innocuous enough, or even that the third-party doctrine removes the innocent cellular subscribers’ protection under the Fourth Amendment. However, what happens when, and yes, very likely a question of when, the data or historical CSLI that is retrieved during cell tower dumps includes far more pervasive and intimate details than at present. Technology is exponentially advancing and if the Courts do not address these issues with the future in mind, then the laws will surely being playing catch up for the foreseeable future.
The Outlier: N.D. Cal. Applies The Fourth Amendment Standard To The SCA
The Northern District of California appears to be the only District Court to uniformly find that an individually targeted or non-targeted cellular subscriber retains the traditional reasonable expectation of privacy under the Fourth Amendment when it comes to his or her data and historical CSLI under the SCA. District Judge Lucy Koh in the Northern District held that cell phone users have a reasonable expectation of privacy in their historical CSLI associated with their cell phones. With respect to the third-party doctrine exception to the probable cause requirement under the Fourth Amendment, Judge Koh found that the passive generation of historical CSLI is inapposite to the holdings in Smith v. Maryland and United States v. Miller that relied on an individual’s “voluntarily conveyed” information to a third-party.
Further, District Judge Susan Illston of the Northern District of California held “that the Fourth Amendment provides the appropriate mechanism to balance the government’s interest in law enforcement and the people’s right to privacy in their physical location as conveyed by historical cell site data over a period of 60 days.” But because the SCA does not mention cell site data or CSLI, the Court did not find “the SCA to be constitutionally deficient. Rather, the Court assumes, as it must, that Congress could not have intended the SCA to be used to obtain constitutionally protected information absent a showing of probable cause."
Relying, in part, on Judge Koh’s order, District Judge William H. Orrick of the Northern District of California granted a motion to suppress historical CSLI of a government suspect targeted cellular subscriber’s phone number under an unlawful search warrant—without addressing the third-party doctrine. There were no specific facts relating to the suspect in this case other than “passing” references to the suspect and that the suspect’s “number was one of those in the girlfriend’s cell phone.” Further, Judge Orrick declined to apply the good faith exception to the warrant requirement because it was “‘entirely unreasonable’ to believe that the affidavit’s passing, innocuous references to [the suspect] established probable cause to obtain his cell phone data.”
It remains to be seen whether the Northern District of California’s assumption that Congress could not have intended the SCA to subvert the probable cause requirement in obtaining constitutionally protected information will be resolved in United States v. Carpenter.
Loose Ends: Will United States v. Carpenter Resolve The Cell Tower Dump Issue?
At the time of this publication, the Supreme Court has not yet issued its opinion for United States v. Carpenter. If nothing more, United States v. Carpenter will at least resolve the circuit split as to whether an order under the SCA for a criminal suspect’s targeted cellular subscriber’s CSLI is protected by the Fourth Amendment. Specifically, the Court might help define what the permissible duration of monitoring a targeted cellular subscriber’s data or historical CSLI might be. What will likely remain is the question of whether innocent non-target cellular subscribers’ data and historical CSLI are protected by the Fourth Amendment from cell tower dumps.
In light of Justice Sotomayor’s concurrence in United States v. Jones, the Supreme Court in United States v. Carpenter might do away with the third-party doctrine altogether as applied to the government’s access to a targeted cellular subscriber’s data or historical CSLI. Perhaps just with respect to data and historical CSLI collected under the SCA. Consequently, the non-targeted cellular subscriber would, by extension, be protected by traditional Fourth Amendment protections, requiring the government to demonstrate probable cause under the SCA. It may even render unconstitutional the SCA’s standard for obtaining an order for historical CSLI under § 2703(d). Like many of the District Courts, however, the Supreme Court will likely not overrule the standard for obtaining an order under § 2703(d) of the SCA altogether. Considering the question presented and many of the Justice’s line of questioning during oral argument in United States v. Carpenter, the Court appears more concerned with the permissible duration of accessing an individually targeted subscriber’s CSLI, presenting a similar problem that the Court addressed in United States v. Jones.
However, if the Supreme Court finds that the third-party doctrine does apply to targeted cellular subscribers, consequently, those innocent non-targeted cellular subscribers whose privacy is not protected by cell tower dumps will remain unprotected by the Fourth Amendment.
Would it take a new legal challenge to narrow a Supreme Court holding that finds for the former? In its dicta, will the Supreme Court address cell tower dumps under the SCA to provide guidance to the lower courts? This could remain an open question until some point in the near-future where the depth of the data gathered during a cell tower dump from non-target cellular subscribers triggers sufficient and concrete privacy concerns, and sufficient standing requirements on the part of the non-targeted cellular subscribers, in order to challenge the potentially sweeping privacy invasions of our most intimate information.
Will the question of voluntariness pervade the conversation regarding the application of the third-party doctrine as applied to cellular data and historical CSLI? How much should the average cellular subscriber have to know about his or her data plan in order for the Court to properly define the degree of knowledge that is sufficient to satisfy the voluntary dimension of the third-party doctrine in order to provide a satisfactory threshold to comport with the Court’s precedent if it chooses not to modify or overrule Smith v. Maryland and United States v. Miller? How, if ever, will the legislature deal with this doctrine?
Despite Justice Alito’s insistence that cellular data or historical CSLI is no more intimate than the bank records at issue in United States v. Miller, cellular data and CSLI, as Justice Breyer noted, “is infallible. You can follow [it] forever.” Whether the Supreme Court finds that a targeted cellular subscriber should receive Fourth Amendment protection, requiring the government to show probable cause, or not, the Supreme Court may eventually have to answer the question of whether innocent non-targeted cellular subscribers should receive Fourth Amendment protection in order to safeguard individual privacy from government cell tower dumps.
As it stands now, “CSLI, like GPS, can provide the government with a ‘comprehensive record of a person’s public movements, that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.’” And as Justice Sotomayor put it, “I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations.” In order to gain access to such information, as any reasonable citizen would agree, the government should obtain a warrant supported by probable cause.
At the very least, it appears that non-targeted cellular subscribers in the Northern District of California could continue to receive traditional Fourth Amendment protection from warrantless cell tower dumps.
 In re Cell Tower Records Under 18 U.S.C. 2703(d), 90 F. Supp. 3d 673, 677 (S.D. Tex. 2015) (holding that the Stored Communications Act authorized an order compelling service providers to release data for towers providing service to the crime scene within ten minutes of the crime rather than the hour originally requested).
 In re Application of the U.S.A. for an Order Pursuant to 18 U.S.C. 2703(c), 2703(d) Directing AT & T, Sprint/Nextel, T-Mobile, Metro PCS, Verizon Wireless, 42 F. Supp. 3d 511, 518 (S.D.N.Y. 2014).
 United States v. Ruby, 2013 WL 544888, at *6 (S.D. Cal. Feb. 12, 2013).
 U.S.A. v. Brown, 2017 WL 3428300, at *4 (C.D. Cal. Aug. 7, 2017).
 United States v. Dorsey, 2015 WL 847395, at *1 (C.D. Cal. Feb. 23, 2015).
 Id. at *11-*16.
 In re Application for Tel. Info. Needed for a Criminal Investigation, 119 F. Supp. 3d 1011, 1026 (N.D. Cal. 2015), appeal dismissed (Feb. 5, 2016); see also United States v. Alvarez, 2016 WL 3163005, at *1 (N.D. Cal. June 3, 2016) (finding that the Fourth Amendment protects CSLI under 2703).
 Id.; see generally Smith v. Maryland, 442 U.S. 735 (1979) (holding that the installation and use of a pen register by a telephone company did not constitute a Fourth Amendment search); see also United States v. Miller, 425 U.S. 435, 442 (1976) (holding that a bank depositor did not have a reasonable expectation of privacy in his bank records, in part, because he “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.”).
 United States v. Cooper, 2015 WL 881578, at *8 (N.D. Cal. Mar. 2, 2015).
 United States v. Williams, 161 F. Supp. 3d 846, 848 (N.D. Cal. 2016), the Ninth Circuit withdrew its application in light of United States v. Carpenter; see United States v. Williams, 2016 WL 492934, at *1 (Feb. 9, 2016).