Are Historical Cell-Site Data Protected Under the Fourth Amendment After United States v. Jones?

No, concludes Judge Bennett in United States v. Graham (District of Maryland, March 1, 2012). Judge Bennett concludes that historical cell-site records are not protected because they fall under the third-party doctrine:

Like the bank records at issue in [United States v.] Miller, the historical cell site location records in this case are not the ‘private papers’ of the Defendants—instead, they are the ‘business records’ of the cellular providers. Federal law does not mandate that cellular providers create or maintain this type of data,11 and even courts that have concluded that government acquisition of cumulative cell site location records can violate the Fourth Amendment generally acknowledge that these records are ‘generated in the ordinary course of the provider‘s business.’ In re Application of the United States, 747 F. Supp. 2d 827, 841 (S.D. Tex. 2010) (Smith, Mag. J.), appeal docketed, No. 11-20554 (5th Cir. Dec. 14, 2011). Moreover, insofar as historical cell site records are created and maintained by the cellular providers, individual customers do not generally have access to those records, and could not be expected to produce them in response to a subpoena. Under the reasoning of Miller, therefore, historical cell site location records are the provider‘s business records, and are not protected by the Fourth Amendment.

. . .
Based on clear Supreme Court and Fourth Circuit precedent, this Court finds the third-party doctrine applicable to historical cell site location information. Like the bank records at issue in Miller, the telephone numbers dialed in Smith, and the subscriber information collected in Bynum, historical cell site location records are records created and kept by third parties that are voluntarily conveyed to those third parties by their customers. As part of the ordinary course of business, cellular phone companies collect information that identifies the cellular towers through which a person‘s calls are routed.

Judge Bennett also includes an extensive analysis of the concurring opinions in Jones that appear to embrace what I have called a “mosaic theory” of the Fourth Amendment. He concludes that he cannot embrace a mosaic theory in this case, however, because the theory is so different from what has come before that it should be construed narrowly until the circuit courts or Supreme Court indicate to the contrary:

[I]t appears as though a five justice majority is willing to accept the principle that government surveillance over time can implicate an individual‘s reasonable expectation of privacy. However, as will be discussed below, the factual differences between the GPS technology considered in the Jones case and the historical cell site location data in the present case lead this Court to proceed with caution in extrapolating too far from the Supreme Court‘s varied opinions in Jones. Until the Supreme Court or the United States Court of Appeals for the Fourth Circuit definitively conclude that an aggregation of surveillance records infringes a Fourth Amendment legitimate expectation of privacy, this Court must apply the facts of this case to the law as currently interpreted.

Judge Bennett ultimately concludes that the established caselaw on the third-party doctrine trumps the mosaic theory, at least for now: “unless and until the Supreme Court affirmatively revisits the third-party doctrine, the law is that a ‘person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’ Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (citing, e.g., United States v. Miller, 425 U.S. 435, 443 (1976)).”

This strikes me as a pretty sensible resolution of the issue given the current state of the caselaw. Note that Judge Bennett suggests that there may be a constitutional difference between collecting prospective and historical cell-site information, so the decision is relatively narrow. Also note that the issue in Graham arises in a motion to suppress filed in a criminal case, so the case does not raise the ripeness concerns I have addressed in my amicus brief in the Fifth Circuit case that otherwise raises similar issues.

Thanks to reader Michael Wein for the pointer.