Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review
Cell phone use is now an essential part of daily life. Individuals use cell phones for entertainment, business, and as their main source of communication. The Stored Communications Act (“SCA”) allows a court to issue an order compelling third-parties to disclose stored electronic records to the government so long as the government reasonably believes that the records are relevant to a criminal investigation.[1] However, the standard for securing a traditional warrant—probable cause—is markedly higher than the SCA’s reasonable belief standard.[2] The Fourth Circuit held that when the government obtains these electronic records without a warrant it violates an individual’s Fourth Amendment rights.[3] Other circuits disagree, however, holding that the government does not commit an unconstitutional search when it compels a cell phone service provider to turn over electronic records.[4] Since the Fourth Circuit’s analysis best aligns with society’s reasonable expectation of privacy in the digital age, its argument is most persuasive.
Cell Phone Tracking and the SCA
Historical cell site location information (“CSLI”), collected by cell phone service providers, can be used to map out where a person has been by inspecting which cell site the person’s cell phone interacted with at a certain time.[5] Cell sites are found throughout a provider’s coverage area and enable cell phones to connect to the provider’s network.[6] Whenever a cell phone user makes a call, sends a text message, connects to the Internet, or downloads background data, that user connects to whichever cell site is closest to the cell phone.[7] The service providers collect data from these interactions and records which cell site interacted with the phone and when that interaction happened.[8] Using a string of historic CSLI data points, the government can determine the general whereabouts of an individual at specific times.
The SCA allows the government to obtain these records without obtaining a warrant.[9] The SCA only requires the government to meet the reasonable belief standard.[10] The reasonable belief standard only requires that “specific and articulable facts” exist to provide a reasonable belief that the information sought is “relevant and material to an ongoing criminal investigation.”[11] Inspection of CSLI should require a warrant pursuant to the Fourth Amendment protections requiring probable cause. The higher standard of probable cause requires “sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime.”[12]
The constitutional question at issue in Graham is whether obtaining these records constitutes a search subject to the standards of the Fourth Amendment. The government’s rationale, supporting procurement of these records without a warrant, is that the records are produced by a third-party and that an individual waives their Fourth Amendment protections once they interact with that third-party.[13] According to the government, the SCA does not violate the Fourth Amendment because the CSLI records are business records kept by the service providers and that compelling the service provider to turn over CSLI does not constitute a search or seizure.[14] The Fourth Circuit disagreed with the government’s rationale, holding that the government conducts a search when it obtains a user’s historical CSLI.[15]
The Third-Party Doctrine
The third-party doctrine in search and seizure cases was developed in Smith v. Maryland, where the Supreme Court held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third-parties.”[16] In Smith, the court determined that when Smith dialed a phone number, he voluntarily conveyed that information to the phone company and no longer had an expectation that the information would not be disclosed to the government.[17] The information was voluntarily conveyed because Smith actively conveyed the information. Therefore, an individual waives their Fourth Amendment protections when an individual voluntarily conveys information to a third-party.
U.S. v. Graham: CSLI Subject to Fourth Amendment Protection
In U.S. v. Graham, the Fourth Circuit Court of Appeals held that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time.”[18] CSLI “traces the movements of the cell phone and its user across public and private spaces and thereby discovers the private activities and personal habits of the user.”[19] The Fourth Circuit declined to apply the third-party doctrine and adopted the presumption that cell phone users “have a reasonable expectation of privacy in their long-term CSLI.”[20] Therefore, the court did not apply the reasonable belief standard of the SCA because the Fourth Amendment standard of probable cause controls.
The Fourth Circuit focused its analysis on when information is voluntarily conveyed to determine whether the third-party doctrine applied in this case.[21] The service provider automatically produces CSLI whenever a cell phone connects to the service provider’s network, thereby creating a “location-identifying by-product of cell phone technology.”[22] Moreover, CSLI is produced when the user does nothing; for example, when the cell phone user receives a text message or phone call and ignores the message, the user’s cell phone still connects to the cell site and CSLI is produced.[23] Unlike other information collected by third-parties, a cell phone user does not always voluntarily or knowingly give their location information to a cell phone service provider.[24]
The Fourth Circuit also explained that because cell phone users cannot “hide information about [their] location from [their] service provider[s],” cell phone users have a reasonable expectation that service providers will not disclose CSLI.[25] The court continued by likening CSLI data to the content of emails, which have Fourth Amendment protections.[26] Due to advancements in technology, CSLI has created “increasingly precise information about the locations and movements of network users.”[27] There is a societal expectation that when technology advances, protections against government intrusion should equally advance.[28] Third-parties collect information to facilitate everyday communications, and there is a reasonable societal expectation that these third-parties will not disclose this information to the government.[29]
Fifth and Eleventh Circuits: Fourth Amendment Protections Do Not Apply
The Fifth Circuit and Eleventh Circuit upheld the SCA’s reasonable belief standard for procuring CSLI. When these circuits analyzed the constitutional question, both applied the third-party doctrine.[30] When reviewing CSLI, the Fifth Circuit held that CSLI data is voluntarily conveyed by cell phone users because the users voluntarily use their phones and the CSLI is thus subject to disclosure under the third-party doctrine.[31] The Fifth Circuit discounted society’s expectation of privacy, finding that a better way for society to address expectations of privacy is through legislative means or through the marketplace.[32]
The Eleventh Circuit, in Davis, held that a reasonable expectation of privacy was inapplicable because CSLI are business records created by the service provider, collected at cell sites that are created by the service providers.[33] The Court dismissed any residual argument regarding protection from governmental invasion of privacy by explaining that when balancing the right of an individual’s privacy against the government’s interest of preventing future crimes, the government’s interest prevails.[34]
Protection of CSLI under the Fourth Amendment
The Fourth Circuit’s stance—extending Fourth Amendment protections to CSLI—is the more appropriate holding because it provides greater protection to an individual’s ability to use technology without fear of governmental intrusion. Fourth Amendment jurisprudence focuses on the eternal struggle between security and privacy; [35] allowing the government to procure CSLI from third-parties would disrupt that balance, relinquishing too much privacy for security.
Allowing the government to inspect CSLI without a warrant gives the government the ability to track a cell phone user’s location with minimal constitutional safeguards. CSLI is produced so long as the cell phone can connect to the network. This means that the government can use CSLI to determine the location of private locations a cell phone user may go, such as their home, workplace, and the homes of friends’ and lovers’. Using CSLI, the government can “discover the private activities and personal habits of the user” despite the user’s reasonable expectation of privacy when in a private space.[36]
Cell phone use has become a pervasive aspect of our lives; most adults own a cell phone or smartphone.[37] In most instances, an individual could stop using a private company if they do not like how their data is collected and handled. However, stopping cell phone use entirely would severely limit an individual’s capacity to fully participate in society. Given the government’s ability to access a person’s CSLI, the information that can be derived from CSLI, and society’s ubiquitous use of cell phones, inspection of CSLI needs Fourth Amendment protections rather than allowing a reasonable belief standard. The government should provide sufficient evidence linking the individual to criminal activity before obtaining CSLI.
Tracking CSLI has a disproportionate effect on minorities and young adults due to their smartphone dependency. Many depend on smartphones as their only source for internet access, with young, low-income, non-whites most likely to depend on smartphones.[38] Smartphone dependency is especially worrisome, as smartphones produce more CSLI because smartphones interact every few minutes or seconds with cell sites.[39] In other words, those most dependent on modern advancements in technology produce the most CSLI and, therefore, would provide the most detailed tracking for the government. In an age where the cell phones have become essential for many Americans, cell phone users should not have to trade their personal freedom for the convenience of modern technology.
Fourth Amendment Protections in the Digital Age
With constant advancements in technology, Fourth Amendment jurisprudence needs to keep up. The Fourth Amendment protections against governmental intrusion will face more complex challenges as technology creates a more integrated world. While citizens may trust private third-parties with information about their private lives, protections exist to limit the government’s ability to intervene in our private lives. The Supreme Court will need to remedy this circuit split and should follow the example set by the Fourth Circuit.
While the Fourth Circuit stands alone, its ruling is the most persuasive and best promotes the intent of the Fourth Amendment. The Fourth Circuit correctly assumes that cell phone users have a reasonable expectation of privacy in trusting their service provider’s with CSLI. Cell phone users expect that information generated in the course of using a provider’s network will not be used to track them. If citizens cannot trust that this information will remain private, then they will be unable to enjoy the use of technological advancements without the fear of disclosure of their private information to the government. The Fourth Circuit’s holding promotes the assumption that cell phone users do not want their CSLI in the hands of the government and strengthens Fourth Amendment protections in the digital age.
[1] See 18 U.S.C. § 2703(d) (2009).
[2] United States v Graham, 796 F.3d 332, 344 (4th Cir. 2015).
[3] Id. at 338.
[4] See In re U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013); see also U.S. v. Davis, 785 F.3d 498, 500 (11th Cir. 2015).
[5] Graham, 796 F.3d 332, at 354.
[6] Id. at 343.
[7] Id. (cell sites have a “geographical coverage range,” and when a cell phone moves from one location to another it will connect to whichever cell site covers that geographical area, even changing cell sites during the course of a phone call).
[8] Id.
[9] In re U.S. for Historical Cell Site Data, 724 F.3d 600, at 606.
[10] See 18 U.S.C. § 2703(d) (2009).
[11] Graham, 796 F.3d 332, at 344.
[12] Paul Coltoff, et al., 79 C.J.S. Searches § 202.
[13] Id. at 610.
[14] Graham, 796 F.3d 332, at 351.
[15] Graham, 796 F.3d 332, at 344.
[16] Smith v. Maryland, 442 U.S. 735, 743-44 (1979).
[17] Id. at 744.
[18] Id. at 344.
[19] Id. at 345.
[20] Id. at 360.
[21] Graham, 796 F.3d 332, at 354.
[22] Id.
[23] Id. at 354.
[24] Id. at 357 (contrasting CSLI to voluntary conveyed information such as communication between associates or financial transaction records held by banks).
[25] Id. at 358-59.
[26] Id. at 358.
[27] Id. at 359-60.
[28] Id. at 359.
[29] Id. at 360.
[30] See, Davis 785 F.3d 498, at 513; In re U.S. for Historical Cell Site Data, 724 F.3d 600, at 615.
[31] In re U.S. for Historical Cell Site Data, 724 F.3d 600, at 614.
[32] Id. at 615.
[33] Davis, 785 F.3d 498, at 514.
[34] Id. at 518.
[35]Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 574 (2009).
[36] Graham, 796 F.3d 332, at 345.
[37] See Mobile Technology Fact Sheet, Pew Research Center, available at http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/.
[38] See Aaron Smith, U.S. Smartphone Use in 2015, Pew Research Center, (Apr. 1, 2015), available at http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/ (These “smartphone-dependent” users need smart phones to do mundane activities such as online banking, submit job applications, access government services, and access educational content).
[39] Graham, 796 F.3d 332, at 350.
