Disregarding Privacy, Court Rules Common Cell Surveillance Method is Legal

In a show of "complete disregard" for privacy, a federal appellate court on Wednesday ruled that the warrantless collection of cell phone location data is constitutional.

The Sixth Circuit Court of Appeals ruled in United States v. Carpenter that law enforcement can legally request cell site location information (CSLI) without a warrant on the grounds that routing data, which is not as accurate as GPS coordinates, is not protected under the Fourth Amendment.

But as Jennifer Lynch, senior staff attorney with the digital rights group Electronic Frontier Foundation, wrote in a blog post responding to the ruling, "The opinion shows a complete disregard for the sensitive and revealing nature of [CSLI] and a misguided response to the differences between the analog technologies addressed in old cases and the data-rich technologies of today."

The ruling joins with previous decisions by other regional appellate courts that now means law enforcement in Kentucky, Michigan, Ohio, and Tennessee can obtain court orders for CSLI data just by showing that the records are relevant to an ongoing investigation.

Meanwhile, a ruling in August by a three-judge panel for the Fourth Circuit Court of Appeals found that police must obtain warrants for CSLI records, which require probable cause, a higher standard than what is required for a court order.

Regarding Wednesday's ruling, Lynch explains:

In reaching its contrary opinion, the Sixth Circuit repeatedly relied on old cases addressing much less intrusive "technologies" like letters and landline phones.... It determined that CSLI was merely "information necessary to convey" a call, rather than the content of the call itself, and therefore access to CSLI records was not a "search" for purposes of the Fourth Amendment.
This analysis is a little different from many other cases we've worked on where courts have held that because your location information is shared with a "third party" cellphone service provider, you no longer have an expectation of privacy in it (the Sixth Circuit cited to this doctrine as well). Here, the Sixth Circuit seems to be trying to further minimize the sensitive nature of location information by analogizing it to the addressing information on the outside of a single envelope sent through the mail.

The case at hand stems from a 2011 investigation into a string of robberies in the Detroit area. Two men, Timothy Carpenter and Timothy Sanders, were charged with aiding and abetting after another suspect who confessed to the crimes gave FBI investigators his mobile device and phone number, as well as 16 other numbers linked to possible suspects. Agents then obtained court orders for several months' worth of CSLI records for those phones.

Sanders, who was already serving 30 years for murder, received an additional 14 years for his role in the robberies. Carpenter was sentenced to 116 years.

The defendants argued that the practice was unconstitutional. The ACLU bolstered that claim in a March 2015 brief that stated, "In this case as in the others, the data acquired by police provides a stark demonstration of how location data can reveal extraordinarily private details about our lives."

"When police obtain months' worth of cell phone data comprising thousands of individual locations, like they did in this case, they should have to get a search warrant from a judge," ACLU attorney Nathan Freed Wessler argued in a statement.

"When we did our own analysis of this location records...we were able to tell things like when the defendant spent the night at home and spent the night at a different neighborhood," Wessler told the Guardian. "These records when they're aggregated can be very sensitive and it's very important that our understanding of the Fourth Amendment keeps pace with the advancing technology."

But the court disagreed. In the majority opinion, Judge Raymond Kethledge referred to a 1979 ruling in which the U.S. Supreme Court held that the numbers dialed on a landline are not protected by the Fourth Amendment because the caller willingly gives that data to phone companies. "The same things are true as to the locational information here," he wrote.

Lynch concludes, "Ultimately, the court seems to shirk its constitutional responsibilities by arguing that because modern technologies 'evolve at rates more common to superbugs than to large mammals,' the court was not properly equipped to address the privacy issues raised by CSLI."

As the Atlanticpoints out, collection of CSLI may be the most common type of cell phone surveillance.