Law enforcement agencies do not require a warrant to obtain individuals’ near-real-time cellphone location data, a federal court has ruled.
Most Americans are familiar with the invasive surveillance tactics used by the NSA. According to the Washington Post, the agency gathers “nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes the collection of location data on “tens of millions” of U.S. citizens each year without a warrant.
Through fusion centers, state and local law enforcement agencies act as information recipients from various federal departments under the Information Sharing Environment (ISE). ISE partners with numerous federal agencies and organizations, including the NSA, and allows state and local law enforcement to share data up the chain to the feds.
The NSA expressly shares warrantless data with state and local law enforcement through a DEA unit known as the Special Operations Division (SOD). That information is being used for criminal prosecutions. According to Reuters, most of this shared data has absolutely nothing to do with national security issues, and mostly involves routine criminal investigations.
On the state and local level, cell phone Tower Dumps give location data to police indiscriminately. These Tower Dumps allow investigators to obtain information on every cell phone connected to any particular tower during a requested time, even if they are not related to a crime. A Congressional inquiry found that companies received at least 9,000 tower dump requests in 2012, and in 2013 Verizon alone reported receiving 3,200 such requests.
Even when they were successful in helping solve a crime, virtually all of those dumps also resulted in the government obtaining location information about hundreds, thousands, or even hundreds of thousands of innocent people.
When cell phone information ends up in a police database, it could stay there a long time. Evidence control laws in South Carolina for example, say if a suspect is convicted or pleads guilty, police could keep everything they get from a Tower Dump for up to seven years.
Perhaps the most well known way of pinpointing citizens by law enforcement agencies is by a device called Stingray. Stingrays are portable devices that mimic a cell tower and trick nearby cell phones to connect to it. The Stingray then captures the connected devices’ data, allowing law enforcement to track users’ locations. They are relatively small and easily transportable.
According to the ACLU, 72 agencies in 24 states and the District of Columbia own Stingrays. Because many agencies continue to shroud their purchase and use of Stingrays in secrecy, much is still unknown regarding their use by law enforcement agencies nationwide.
The Supreme Court has ruled using GPS devices to track people without warrants is unconstitutional. They have ruled that warrantless cellphone searches are unconstitutional, but they have not issued a ruling on warantless cellphone tracking.
Federal courts have however. The Sixth Circuit Court of Appeals ruled in 2012 that obtaining cell site data does not constitute a search for Fourth Amendment purposes. The Fifth Circuit Court of Appeals ruled in 2013 that individuals have no reasonable expectation of privacy over their location data stating that location data is a “business record” created by private companies with the implicit consent of cell phone users and therefore are not subject to privacy protections.
The rationale was that cell phone companies are not required by the government to create or retain this data and that citizens are not required by the government to carry or use cell phones, thus making the data subject to the Third Party Doctrine and removing any expectation of privacy.
The 11th Circuit Court of Appeals contradicted that ruling in 2014 and found that police “must obtain a warrant before collecting cellphone location data.” The opinion affirmed that acquiring records of what cell towers a phone is connected to, and when it was connected to them, constitutes a Fourth Amendment search.
In its reasoning, the court noted that while the Fourth Amendment has traditionally applied to property rights, it has been gradually expanded to protect much more, including communications.
“In the 20th century, a second view gradually developed,” the court wrote. “That is, that the Fourth Amendment guarantee protects the privacy rights of the people without respect to whether the alleged ‘search’ constituted a trespass against property rights.”
While the 11th Circuit ruling didn’t overturn the Fifth Circuit ruling because of their separate jurisdictions, it added critical precedent for privacy advocates in the fight against the surveillance state.
That was until 2015 when the 11th Circuit overturned the ruling in a case involving police officials getting records from MetroPCS for a Miami robbery suspect using a court order with a lower burden of proof. The court ruled the officials acted properly and that the suspect had no expectation of privacy regarding records establishing his location near certain cellphone towers.
Regarding access to historical records, a Ninth Circuit panel heard arguments on the issue in March and there is currently a petition for certiorari pending at the U.S. Supreme Court. The most recent decision by a federal court pertaining to cellphone records however, involve the access of prospective (near-real-time) location data.
On May 23, the Fifth Circuit ruled in a case involving defendant William Wallace, who received two concurrent 180-month prison sentences for drug, gang and weapons charges. Police officers found guns and ammunition in Wallace’s truck near Victoria, Texas after using cell tower records. Lawyers for Wallace sought to suppress evidence in the case and argued that his sentence would have been much shorter if he had not been designated “an armed career criminal” because of the gun charges.
According to the Fifth Circuit, the searches conducted by investigators were lawful, even though it was necessary to show probable cause to get the cell tower records, because the officers acted in good-faith supported by “specific and articulable facts” when obtaining a court order that constituted a lesser standard than probable cause.
“There is little distinction between historical and prospective cell site data,” Fifth Circuit Judge Edith Clement wrote for the Court. “As in Historical Cell Site Data, here the government sought the disclosure of the locations of cell site towers being accessed by [Wallace’s] cell phone” as recorded in future records captured, stored, recorded and maintained by the phone companies in the ordinary course of business.”
“While this information is ‘prospective’ in the sense that the records had not yet been created at the time the order was authorized, it is no different in substance from the historical cell site information . . . at the time it is transmitted to the government,” Clement added. “The information the government requested was, “in fact, a stored, historical record because it [was] received by the cell phone service provider and stored, if only momentarily, before being forwarded to law enforcement officials.”
In other words, the ruling blurs the lines between what is considered historical and near-real-time cellphone location data and sets a dangerous federal precedent. As such, privacy advocates hope the case is appealed to the Supreme Court, where cell-phone tracking would be deliberated for the first time.