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Warrantless Cell Data Requests Constitutional: 5th Circuit

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By Brett Snider, Esq. on August 01, 2013 3:53 PM

The Fifth Circuit ruled that warrantless data requests by law enforcement from cell phone service providers are in general constitutional, or in other words, not categorically unconstitutional.

In the most recent federal word on this practice of requesting cell site data in order to zero in on the location of criminal suspects, the Fifth Circuit has determined that -- despite the statutory standard being lower than probable cause -- orders under the Stored Communications Act (SCA) for cell location data do not implicate the Fourth Amendment.

SCA Data Request Denied

This case isn't the first time that law enforcement has applied for an order under 18 U.S.C. Section 2703 for historical cell site data from a service provider; cell phone providers respond to approximately a million of these requests per year.

However, it is the first time that a district court has affirmed that these orders, which do not require warrant nor probable cause, are categorically in violation of the Fourth Amendment and hence unconstitutional.

Since the district court so nicely teed up this question of a law's unapplied constitutionality, this is the sort of pure, ripe question of law that the Fifth can take a crack at.

"Specific and Articulable"

18 U.S.C. Section 2703 subsection (d) states that the government needs to present evidence of "specific and articulable facts" supporting "reasonable grounds" to believe that the data requested is relevant, material evidence in a criminal investigation. This is of course less than the typical probable cause standard, and actually sounds pretty similar to the reasonable suspicion standard from Terry.

The argument made by amici in this case -- the government wasn't adverse to any party, just appealing a magistrate's denial -- is that the statute is basically a portal to request data that should require a warrant and probable cause but even Congress can't legislate around the Fourth Amendment.

The data itself allows the government to do something very similar to location tracking inside a residence, which the Supreme Court denied without a warrant in Karo, but relies exclusively on data collected not at the government's insistence or request but by third parties.

Third Party Data Collection

This third party issue is where the Fifth Circuit hangs its hat (and belt, shoes, coat, dog, etc.), noting that the Supreme Court has found time and time again (see Smith v. Maryland) that:

  • Private third party service providers (e.g. Verizon)
  • Can record and store data for a legitimate business purpose
  • And volunteer this data to law enforcement (even when confidential)
  • Without implicating their subscribers' Fourth Amendment rights.

Of decent instruction is a Sixth Circuit case that found that there is no reasonable expectation of privacy in cell phone data that is collected and recorded every time a mobile phone user makes a call; it is simply a fact that a cell phone subscriber is revealing their location to their provider every time they make a call.

Re-evaluating Reasonable Expectations

The Fifth Circuit doesn't agree that all things shared with mobile providers is up for grabs; the contents of phone calls and even emails still can't be gotten without a warrant, but the location data which is regularly recorded and stored by cell phone providers, which we all "know" about, is outside our Katz-pedigreed reasonable expectation of privacy.

This case is different from Katz, the Fifth Circuit opines, because the data requested is a record based on a communication being made through the provider, as opposed to collecting the content of a conversation made from one person to another.

To drive this point home, the Court reminds us that we have no reasonable expectations of privacy in our trash or aerial views of our homes, so this cell site data shouldn't sting too much more.

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