Legal Commentary

Legal Protection for Historical Cell-Site Records

By Orin Kerr

Next week a panel of the Third Circuit will be hearing oral argument in a case that considers whether federal law requires a warrant for the government to obtain historical cell-site records. I blogged a bit about this when the District Court?s decision was handed down, and I thought I would say a bit more now that the issue is before the Court of Appeals.

As I mentioned when I blogged about this issue in 2008, I think the answer to this case is easy: A Terry?stop ?specific and articulable facts? court order is required, but a probable cause search warrant is not. As a statutory matter, the Stored Communications Act is clear here. The cell-site records count as a ?record concerning an electronic communication service? under 18 U.S.C. 2703(c). Under 18 U.S.C. 2703(c)(2), such records can be compelled with a Terry stop ?specific and articulable facts? court order obtained under 18 U.S.C. 2703(d).

But is this standard unconstitutional? That is, does the Fourth Amendment require a warrant backed by the exclusionary rule instead of the lesser standard and lesser remedy Congress has chosen? In her amicus brief, Professor Susan Freiwald argues that the Fourth Amendment protects cell-site info, which would require a warrant. But I think that is pretty clearly wrong under the Supreme Court?s decision in Smith v. Maryland. A cell site signal is closely analogous to numbers dialed in Smith: It?s a signal that the user sends to the phone company that is necessary for the phone company to deliver the user?s calls. It is a necessary part of placing the call, and information that is necessarily transmitted to the phone company. Professor Freiwald relies on various authorities to try to get around Smith v. Maryland, but I don?t think any of them work. Justice Harlan?s dissent in United States v. White was a dissent and has never been the law; Berger v. New York was a case involving content rather than non-content information; and Judge Posner?s opinion in United States v. Torres was on what kind of warrant was required for video surveillance, not whether such surveillance was a ?search? in the first place. I don?t think any of these arguments can get around the pretty clear analogy to Smith v. Maryland.

The EFF?s amicus brief argues that cell site data is different than numbers dialed in Smith because people can reasonably not know that their cell phones need to communicate with cell towers to work. On that theory, people reasonably expect that their location information is private because they don?t know how cell phones function. But that seems to me like the kind of ?magic box? argument that is inconsistent with Smith. In Smith, the Court presumed a telephone user who had a general understanding of how phones work: The Court presumed that people understand that when they dial a phone number, that phone number is communicated to the phone company and disclosed to them so the phone company can place a call.

Following Smith, I think the Third Circuit needs to assume that people know the basics of how cell phones work. Cell phones don?t work by magic: The phones need to communicate their location with nearby cell towers so the service provider knows where to route the calls. In my view, it?s hard to see why the Fourth Amendment should afford constitutional protection to a user?s failure to have that basic understanding. Such an approach would be especially problematic given that social understandings of how technology works can change quickly. My sense is that the percentage of cell phone users who have a basic understanding of how cell phones work increases every year. And once you know how a technology works, that understanding tends to stick. Given that, basing a rule on the incorrect understandings of a decreasing percentage of the population seems quite short-sighted.

Another argument sometimes made is that the statutory protections of the Electronic Communications Privacy Act itself should make an expectation of privacy in location data constitutionally reasonable. The argument is that Fourth Amendment privacy is sometimes phrased in terms of what ?society? is prepared to accept as reasonable. By protecting the location data by statute, ?society? has spoken. This argument doesn?t work, either, for a range of reasons. The first problem is the obvious bootstrapping problem. When the Fourth Amendment protects information, it protects that information with a probable cause standard and particularity backed by the exclusionary rule. In contrast, when Congress enacts legislation to protects by statute that which the Fourth Amendment does not cover, it often chooses a lesser standard and lesser remedy. (That is the case here: the standard is lower and there is no exclusionary rule.)

Saying that the legislative creation of lesser protection and a lesser remedy triggers the constitution?s higher protection and higher remedy is just bootstrapping; one might equally read the same clues as evidence that society does not construe the information as private because the legislature specifically rejected the constitutional protection standard. Put another way, if the existence of legislation shows that ?society? recognizes that something is private, it is a strange homage to that judgment to strike down the legislation that is allegedly the evidence of society?s judgment. It seems to me that statutory and constitutional protection have to be considered separately.

Finally, some argue that Smith v. Maryland is wrongly decided. I happen to disagree; I think Smith is correct, as I argued in this article. But whether Smith is right or wrong, the Third Circuit is bound to follow it.

Full post as published by The Volokh Conspiracy on February 03, 2010 (boomark / email).