Law.com on August 30, 2011 released the following:
“N.Y. Federal Judge Limits Access to Cell Phone Location Data
Law Technology News
Judge Nicholas Garaufis, of the U.S. District Court for the Eastern District of New York, has issued on important decision about the ability of the government to obtain cell phone location information.
The case is In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, No. 10-MC-897, United States District Court, E.D. New York (August 22, 2011).
In this matter, the government sought an order compelling Verizon to disclose location information about a suspected criminal’s cell phone for 113 days. Magistrate Judge Orenstein had previously denied the government’s application. See In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, No. 10-MJ-0550, United States District Court, E.D. New York (August 27, 2010). Garaufis had previously granted such orders, but decided to consider “anew the constitutionality of ordering this application in light of recent developments in Fourth Amendment jurisprudence.”
The court began its analysis by noting that “cellular service providers have records of the geographic location of almost every American at almost every time of day and night … What does this mean for ordinary Americans? That at all times, our physical movements are being monitored and recorded, and once the Government can make a showing of less-than-probable-cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence.”
Under the Fourth Amendment, the government can, absent a few exceptions, only conduct a search with a warrant. A search is defined as government conduct that invades a justifiable, reasonable, or legitimate expectation of privacy. This has two components, subjective and objective: (1) whether the subject of the search expects that the thing to be searched is private, and (2) whether “society is willing to recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001), citing Katz v. United States, 389 U.S. 347 (1967).
Under traditional Fourth Amendment analysis, electronic surveillance of an individual’s location in public has traditionally not been considered to be a search. See United States v. Knotts, 460 U.S. 276, 281 (1981). In contrast, if the electronic surveillance reveals information about a person in a private residence, then this has been considered to be a search. United States v. Karo, 468 U.S. 705, 713-18 (1984). The U.S. Supreme Court — in considering a case involving GPS tracking of vehicles — is set to reconsider this analysis next term. This reconsideration is long overdue, because, as I noted elsewhere, these cases rely on rather primitive tracking devices that are very distinct from modern cell phones.
The New York court was concerned about the question that the U.S. Supreme Court has never addressed — whether electronic surveillance of movements in public for an extended period can constitute a search, even though short-term electronic surveillance of movements in public from one place to another does not. In this case, the district court concluded that permitting the government to obtain “what is essentially at least 113 days of constant surveillance of an individual” is too much for the Fourth Amendment.
The district court said, “The cell-site-location records sought here captures enough of the user’s location information for a long enough time period — significantly longer than the four weeks in Maynard — to depict a sufficiently detailed and intimate picture of his movements to trigger … constitutional concerns.”
This decision is significant because it recognizes that the collection of cell phone location data enables “mass” or “wholesale” electronic surveillance of most Americans — something that has never been permitted under the Fourth Amendment.
A common response from the government is that most cell phone users are aware that the cell phone company maintains tracking data, and that cell phone users waive any privacy concerns by voluntarily providing this information to the companies whenever they turn on their cell phones. Under this analysis, cell phone location data is like bank records — there is no expectation of privacy because the information is provided to a third party or company. This is the analysis that allows the government to obtain, for example, phone calling records. See Smith v. Maryland, 442 U.S. 735(1979).
The court noted that even if people currently are not aware that cell phone companies maintain this information, such public ignorance is not likely to persist. Instead, the court relied upon an expectation to the “public disclosure” doctrine that analogized cell phone location data to letters. Letters, in this analysis, are considered to be private even though an envelope is handed to a third party. The district court considered the location information to be like the information contained inside an envelope — private even though delivered to the parties. The court explained:
“The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by ‘choosing’ to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy in cumulative cell-site-location records.”
This decision must be considered in the context of courts continuing to struggle with the application of the Fourth Amendment to emerging technologies. The language of the district court may be a bit overwrought: “the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits.”
It is enough, rather, for courts to recognize that the application of old doctrines and approaches to technology may not provide adequate protections for privacy in the 21st century.”
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