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Civil Liberties: Do Police Need a Warrant to Collect Cellphone Location Information?
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June 21, 2017
by Scott A. Forsyth
For a change Verizon sent me a paper bill
last month. It appears innocuous but appearances
are deceiving. On the last two pages is my “talk activity,”
47 entries showing the date and time of a
call, duration, the other number, “origination,”
and “destination.” From the entries one
can deduce I spent most of the month in and
around Fairport and Rochester with a trip to
New York City the first weekend of May.
What the bill does not say and what you
may not know is Verizon has collected and
stored information on what part of Fairport,
Rochester, and New York City I called from
or received a call from. It also collects and
stores information on where the call was terminated.
It does so by recording the particular
tower or towers pinged and the particular
“sector” or direction on the tower(s) making
the relay.
In an urban area each cell tower covers
a circle between a half-mile and two miles
wide. The sectors divide the circle into
wedges having a radius as little as 60 degrees.
Small cells, the latest in technology, enable
providers to target one floor of a building, a
waiting room, and even a single home.
What does this mean? Given the ubiquity
of cellphone use, cell site location information
can tell a lot about the movements of a
person. Law enforcement is keenly aware of
this fact and routinely demands the information.
In the first half of 2016 Verizon received
18,935 demands for cellphone location data.
From July 2015 to June 2016 AT&T received
75,302 demands.
The volume of information sought can be
great. Take the case of Timothy Carpenter.
The FBI suspected him of being the mastermind
behind a string of robberies in
Michigan and Ohio. It sought and obtained
three orders directing his cellphone providers
to turn over 127 days of location records.
What it received was 188 pages of “talk activity,”
revealing 12,898 separate points of data,
including information on where he prayed and
slept. From this data, refined by the identity of
the sectors relaying his calls, the FBI placed him
within one-half to two miles of four robberies.
The government used this and other evidence
to convict him. He was sentenced to 116
years of imprisonment.
The orders were not warrants and were not
based on probable cause. Instead they were
issued pursuant to the Stored Communications
Act. A governmental entity need only
offer “specific and articulable facts showing
that there are reasonable grounds to believe
that the contents of a wire or electronic communication
… are relevant and material to
an ongoing criminal investigation.” 18 U.S.C.
§ 2703(d).
Carpenter, joined by the ACLU as an amicus,
appealed. They argued the taking of the
records was a search and required a warrant
based on probable cause.
The Sixth Circuit Court of Appeals disagreed.
United States v. Carpenter, 819 F.3d
880 (6th Cir. 2016). On June 5 the Supreme
Court granted certiorari.
The circuit court invoked the third party
doctrine. A search occurs when government
intrudes upon an area or gathers documents
or other information about which a person
has a reasonable expectation of privacy.
If a person shares the documents or information
willingly with a third party, he loses
any expectation of privacy. The government
can then obtain the documents or the information
from the third party without a
warrant. Classic examples of documents and
information shared are checks and deposit
slips, United States v. Miller, 425 U.S. 435
(1976), and the telephone numbers dialed
on a land line, Smith v. Maryland, 442 U.S.
735 (1979).
The doctrine operates as an on-off switch.
If a person shares documents or information
with a party, the material is no longer considered
private, no matter how sensitive the
material may be. Conversely, if a person does
not share the documents or information, the
material is considered private, no matter
how benign the material may be.
Carpenter shared information about his
location with his providers when he used his
cellphone, both as a caller and as a receiver of
calls. Therefore, he did not have a reasonable
expectation of privacy in the information
and the FBI could obtain it. That the request
spanned more than four months and netted
12,898 points of data was irrelevant to the
majority. Not so to the concurring judge. She expressed
“concern” about a “test that appears
to admit to no limitation on the quantity of
records or the length of time for which such
records may be compelled.” She concluded
there needs to be “a new test to determine
when a warrant may be necessary under
these or comparable circumstances.”
The Third Circuit agrees with the concurring
judge. It gives magistrates the discretion
to require a warrant if the location information
will implicate a person’s privacy rights,
such as his presence in a constitutionally
protected space like his home. In re Application
of U.S. for an Order Directing a Provider
of Elec. Commc’n Serv. to Disclose Records to
Gov’t, 620 F.3d 304 (3rd Cir. 2010).
Three circuits agree with the majority in Carpenter. The Supreme Court will now be able to resolve this conflict.
Collecting and analyzing cellphone records,
even the information about a person’s
“talk activity,” can and will expose sensitive
details about a person’s “familial, political,
professional, religious, and sexual associations,”
to quote Justice Sonia Sotomayor.
Technology has advanced greatly since the
Supreme Court decided Miller and Smith. It
is time for the Court to rethink the third party
doctrine. Personal information we inadvertently
share as part of everyday life should
be protected.
Scott Forsyth is a partner in Forsyth & Forsyth
and serves as counsel to the local chapter
of the ACLU, but the views expressed herein
are his own. He may be contacted at (585)
262-3400 or

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