The Volokh Conspiracy

I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the concurring opinions in United States v. Jones, surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment. I think the mosaic approach is a misstep for reasons I elaborated on in this article. And the handful of lower courts to have considered the theory since Jones mostly have not adopted it, either because they found it unpersuasive, because they distinguished Jones on the facts, or because they avoided the question under the good-faith exception to the exclusionary rule. See, e.g., United States v. Graham, 846 F.Supp.2d 384 (D.Md. 2012).

In the last week, two district courts have divided on the question: United States v. Rigmaiden (D. Ariz. May 8, 2013), and United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013) In this post, I want to discuss the two rulings, and then offer some critical commentary on Powell at the end.

First, today in United States v. Rigmaiden (D. Ariz. May 8, 2013), Judge Campbell held that the third-party doctrine applies to both cell-site information collected over 38 days and websurfing destination IP address information that collected 1.8 million destination IP addresses. Judge Campbell held that the mosaic theory did not apply when the government obtained historical cell-site records of the target’s location over a 38 day period, which it used to find the defendant:

Defendant argues that the government was able to use the cell-site information to effectively track his aircard from June 10 to July 18, 2008, a period of 38 days, and that this “prolonged surveillance” implicated his reasonable expectation of privacy. Doc. 824 at 215-17. Defendant relies on United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), and United States v. Jones, 132 S.Ct. 945 (2012), but those decisions are inapposite. They do not address orders under the SCA, and the Supreme Court in Jones did not adopt the privacy theory advanced by Defendant.

In this case, a government agent, working in his office with the historical cell-site information and using mathematical and triangulation techniques, was able to calculate a general location for Defendant’s aircard during a 38-day period. The calculation narrowed the location of the aircard to one-quarter of a square mile.The Court cannot conclude that such use of cell-site information [over a 38 day period], obtained from a third party under the SCA, is tantamount to attaching a GPS device to a person’s vehicle. Calculations made from the historical cellsite information did not provide minute-by-minute intelligence on Defendant’s precise movements as did the GPS device in Maynard. The calculations merely identified a general area where the aircard was located – and stationary – for 38 days.

Also, in the case of the IP addresses monitored, the volume of surveillance didn’t matter:

Nor did the government violate Defendant’s Fourth Amendment rights by the volume of IP addresses it obtained. Defendant notes that the government obtained 1.8 million IP addresses from Verizon, and argues that the government should have tailored its request more narrowly and obtained only those IP address it had already connected to the tax-refund scheme. Because obtaining IP addresses is akin to obtaining telephone numbers, an act that does not implicate the Fourth Amendment at all, Forrester, 512 F.3d at 510–11, the Court cannot conclude that the government was required to narrowly tailor its request. Moreover,Forrester specifically held that there is “no difference of constitutional magnitude” between obtaining IP addresses and learning the total volume of communications with such addresses, holding that the government’s monitoring of “the total volume of data transmitted to and from [the defendant’s] account” did not violate the Fourth Amendment. Id. at 511. If the government can obtain destination IP addresses and the total volume of such communications without implicating the Fourth Amendment, the Court cannot conclude that the government somehow violated the Fourth Amendment when it obtained 1.8 million IP addresses accessed by Defendant’s computer.

On the other hand, last week Judge Murphy of the United States District Court for the Eastern District of Michigan handed down a decision adopting what amounts to a mosaic approach for cell-phone tracking in United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013). In Powell, eight defendants in a wide-ranging narcotics conspiracy jointly moved to suppress cell-site and GPS information obtained from six cell phones to monitor the location of the conspirators. The FBI had obtained a series of search warrants to obtain the records pursuant to Federal Rules of Criminal Procedure 41. Each of the warrants allowed the government to monitor an individual phone for at least 30 days, and the collection of all the warrants together allowed the agents to monitor the collection of cell phones for about seven months. The monitoring occurred over seven months in 2010, and one warrant in particular revealed very helpful information about the locations of at least one of the conspirators. Fourteen conspirators were charged in the case, and eight defendants moved together to suppress the location monitoring on the ground that the warrants were defective and thus that the fruits of the location monitoring had to be suppressed.

In Judge Murphy’s opinion, he ultimately rules that the good-faith exception to the exclusionary rule applies, so the motion to suppress is denied. But before he gets there, he adopts a few novel holdings about the Fourth Amendment.

First, Judge Murphy rules that a warrant was required to conduct as much monitoring as the government conducted. It’s true that in United States v. Skinner, the Sixth Circuit (binding on Judge Murphy) had said that cell-phone tracking of a suspect was outside the Fourth Amendment. But Skinner involved tracking for only a few days, while all of the monitoring collectively in this case involved tracking of the various suspects for seven months. This was a long enough period that it was highly likely that some of the tracking occurred when suspects were inside their homes: “Given the duration and intensity of the tracking, it cannot be reasonably argued that only public-thoroughfare data was collected. The government certainly collected cell-site data emanating from within the defendants’ homes or from another place in which the defendants had a legitimate expectation of privacy.” That matters because United States v. Karo had held that it was a search to monitor the location of a beeper device from inside a home. Under Karo, “[i]f at any point a tracked cell phone signaled that it was inside a private residence (or other location protected by the Fourth Amendment), the only other way for the government to have obtained that information would be by entry into the protected area, which the government could not do without a warrant.” This was bolstered by Kyllo v. United States, Judge Murphy reasoned, because the government couldn’t know if it was monitoring a suspect’s location inside the home:

In Kyllo, the Court rejected the argument that the government could restrict its thermal searches to non-“intimate” details based on the practical observation that “[n]o police officer would be able to know in advance whether his through-the-wall surveillance picks up ‘intimate’ details-and thus would be unable to know in advance whether it is Constitutional .” Id. at 38 (italics added). The same problem is posed by requests for prospective real-time cellsite location data. The March 11, 2010 warrant authorized the DEA to collect real-time cellsite location data for up to thirty days. Under virtually any circumstance, there was no way the DEA could know in advance whether or not the location data collected during that period would come from within a protected area.

Having distinguished Skinner, Judge Murphy then turned to the concurring opinions in Jones:

The Court’s Fourth Amendment concerns also overlap with those expressed by the D.C. Circuit in Maynard, and in the Jones concurrences. See Maynard, 615 F.3d at 562; Jones, 132 S.Ct. at 963–64 (Alito J., concurring in the judgment); Jones, 132 S.Ct. at 954–57 (Sotomayor, J., concurring). Generally speaking, those opinions express the view that warrantless long-term tracking by electronic means violates an individual’s reasonable expectation of privacy, not just because of the potential for tracking into protected areas, because the information obtained through such means is, in the aggregate, so comprehensive.FN7 See, e.g., Jones, 132 S.Ct. at 964 (“[S]ociety’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”) (Alito, J., concurring). The Jones majority found the Fourth Amendment implicated on narrower, property-based grounds, and declined to decide whether surveillance of Jones over thirty days by “electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 954 (“[T]he present case does not require us to answer that question.”). That basis of decision is not available in this case because no device was installed, and yet the privacy concerns implicated by the tracking seem just as profound.

For these reasons, the Court finds that when the government requests authorization to engage in long-term, real-time tracking of an individual’s movements via his or her cell phone, the situation reaches past the law set forth in Skinner, and Fourth Amendment concerns are implicated.

Judge Murphy reconciles his decision with Skinner as follows:

The cell-phone tracking standard is meant to be read in harmony with the Sixth Circuit’s holding in Skinner. Specifically, if the government seeks to track an individual for a short period of time only, with no foreseeable intrusion into protected areas, the probable-cause showing discussed here would not apply and Skinner would plainly govern. If, for example, the tracking was to be done for a limited purpose on public thoroughfares—like in Skinner, with foreknowledge a suspect was taking a two day cross-country trip—the specific Fourth Amendment concerns addressed here would not be raised. But if the tracking the government seeks to undertake is similar to the “intensive 28–day” monitoring the Sixth Circuit itself distinguished, then the more detailed showing required to meet the cell-phone tracking standard should be made

As I have written about the problems I see with the mosaic theory, I was very interested to know what kind of distinction Judge Murphy was drawing between short term and long term monitoring. Which version of the mosaic theory is Judge Murphy adopting? The DC Circuit’s, Alito’s, Sotomayor’s, or something else? How does it apply? How do you group over six phones and monitoring pursuant to a string of different warrants? Who has standing to challenge a mosaic search? Where are the lines? Judge Murphy responds in Footnote 7:

[The mosaic] view has its critics. See, e.g., Orin Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L.Rev. 311 (2012). The present Order does not adopt any of the “mosaic theory” approaches specifically, nor does it purport to address the questions raised in Kerr’s article regarding the implications of the approach. The Court simply notes that the constitutionality of long-term cell-phone tracking was left open in Jones, submits that the privacy issues presented by such tracking merit a doctrinal response, and finds that the facts presented here fall on the wrong side of the constitutional divide.

Judge Murphy next concludes that such monitoring not only requires a warrant, but that it requires a special kind of warrant:

Continue reading ‘District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment’ »

On Tuesday, DOJ filed a brief in the United States District Court for the District of Columbia in United States v. Antoine Jones, on remand from the Supreme Court, on the question of whether cell-site location information is protected under the Fourth Amendment. It’s a good brief, I think, and I was particularly intrigued by the appendices. The appendices included two recent unpublished federal district court decisions on Fourth Amendment protection for cell-site data. To my knowledge, neither opinion has been public before — or if they were public, they are not on Westlaw. Here they are for those interested:

1) United States v. Gordon (D.D.C. February 2012) (Urbina, J.) (ruling, shortly after the Supreme Court’s decision in Jones, that cell-site information is not protected by the Fourth Amendment because Smith v. Maryland is controlling)

2) In re Application of the United States (D.D.C. October 2011) (Lamberth, J.) (redacted version of ruling filed under seal) (ruling after the D.C. Circuit’s decision in Maynard but before Jones that cell-site information is not protected under Smith v. Maryland, and distinguishing Maynard on the ground that cell-site data is much less revealing and detailed about a person’s life than is GPS information).

I recently blogged about United States v. Skinner, the new Sixth Circuit decision concluding that the Fourth Amendment does not protect location information obtained from a cell phone. Skinner has been getting a lot of attention in the blogosphere, in part because the facts are so vague, so decided to take a closer look at the case to see what I could learn about the facts in dispute.

Here’s what I learned. First, here’s the first of the two court orders that the government obtained to compel the phone company to reveal location information. It’s one of the “hybrid” orders that DOJ has tried to use (or at least was using as of 2006, the date of the order) that combines several statutory authorities at once — pen trap, 2703(d), subpoena, etc. Putting aside the open question of the legality of such hybrid orders under statutory laws, the important part for Fourth Amendment purposes is what the court order allows the government to do in terms of location information. The order requires the phone company to provide the government with the following:

(This image may not be sizing correctly for some browsers.  If you’re not seeing well, you can view it here.)  As you can see, the order authorizes the government to get both cell-site and GPS information from the phone. So which did the government use when it “pinged” the phone? It’s somewhat hard to tell, because the magistrate judge’s Report and Recommendation refers to both GPS and cell-site and doesn’t focus much on the distinction. At the same time, the fact section of the magistrate judge’s Report and Recommendation refers primarily to GPS information, not cell-site data. Here’s the critical section, available at United States v. Skinner, 2007 WL 1556596 (E.D.Tenn. 2007):

Agent Lewis was given authorization to ping [FN9] the phone and ascertain its GPS location. He testified that he knew the phone had a GPS device installed in it based on the type of phones that allow minutes to be loaded onto them. Only a few models of telephones are available to those who opt not to subscribe to a wireless service but instead buy a phone which requires minutes to be loaded. After contacting the phone carrier, Agent Lewis learned the specifications for this phone and that it had GPS capabilities.

FN9. “Pinging” a cell phone garners the GPS or triangulation information. [Doc. 71-Tr. 74]. Technically, the phone company does the actual pinging, but the phone company will ping a phone at the government’s ordered request. [Doc. 71-Tr. 75]]

Once Agent Lewis pinged the phone, he discovered that it was in North Carolina. Agent Lewis testified that he immediately realized he had misunderstood previous intercepts of West’s conversations. He now realized that the “James Westwood” phone was the phone that West used to call Big Foot, not the phone in Big Foot’s possession used to call West. To ascertain the number of the phone being used by Big Foot, Agent Lewis called the phone company to get the toll records of all numbers dialed by the “James Westwood” phone. There were several calls, but all were to the help-line and to one other number, (520) 869-6820. The (520) 869-6820 number was registered to “Tim Johnson” and, based on the process of elimination, the agents knew it was the phone being used by Big Foot.

On July 13, 2007, Knoxville agents sought a new order, authorizing the agents to track the “Tim Johnson” phone. Though the actual affiant was Agent Davis, Agent Lewis testified they were working “hand in hand” throughout the investigation and application process. [Doc. 71-Tr. 61]. Agent Lewis also testified that he always relies, and relied in this specific instance, on the Assistant United States Attorneys to provide the correct legal bases to support the applications and affidavits. The agents obtained the order sought.

Acting on the authority granted by the Court, the agents obtained GPS information from the phone company. From this information, the agents learned that the “Tim Johnson” phone was in Arizona. From a wire intercept, they learned that the last load of marijuana had been transferred to the RV on July 13. They also learned that Big Foot was not going to begin his cross-country journey until July 14. The agents believed that, once loaded, the caravan would transport the marijuana to Tennessee, but through a wire intercept they learned that Big Foot was actually going to take the marijuana to his home. Because the agents did not know the exact location of Big Foot’s residence, and thus far did not know Big Foot’s identity, they decided their best course of action was to locate the vehicle and apprehend it on its way east.

The agents did not have anyone following the vehicles and conducting visual surveillance. Therefore, the Knoxville agents watched where the phone was located via GPS tracking with the goal of ascertaining the location of the couriers, Big Foot and his son. They learned that the phone was traveling on an interstate, I-40, on July 15 and moving east across Texas. While watching the phone travel, the officers intercepted a phone call. Agent Lewis testified that at 10:30 P.M. there was a call between, he believed, West and Apodaca, “and Apodaca was wanting to know the progress of the load of marijuana and where it was. And West made the statement that, ‘I just spoke to him and he told me that he’s going to be driving for another couple of hours before he rests.’ ” [Doc. 71-Tr. 50]. At that point, the agents realized the courier would be stationary soon and began to narrow their focus to which Texas office they needed to work with to apprehend the courier. The agents determined that the Lubbock, Texas DEA office would be the closest to where the RV was likely to stop for the night.

At around 2 A.M., the Knoxville agents noticed that an identical GPS reading was appearing. They realized that what West had said earlier was coming true; Big Foot was taking a rest for at least some period of time. Using the latitude and longitude data provided from the telephone company, the agents determined that the vehicle was located at a truck stop near Abilene, Texas.

As I read this, it seems to me that the location monitoring was obtained by ordering the cell-phone provider to contact the phone and have the phone send on its GPS coordinates, not by obtaining cell-site location information that the cell provider was collecting in the ordinary course of business. If that’s right, I think it is still correct that the monitoring did not violate a reasonable expectation of privacy under United States v. Knotts, the radio beeper case, at least so long as the monitoring only revealed the location of the phone on public streets (which appears to be the case). At the same time, I think the legality of the monitoring has to be justified under Knotts as limited by Karo rather than under the broader third party doctrine cases like Smith v. Maryland that the Sixth Circuit at times invoked in support of its opinion.

For more, here’s the government’s appellate brief in Skinner; here are the defense opening briefs and reply brief.

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.

Imagine the police have an arrest warrant for a crime suspect, and they want to find the suspect to arrest him. They happen to know the suspect’s cell phone number, so they want to go to the phone company and have the phone company tell the police the location of the suspect’s phone. The phone company refuses to let the police get that information without a warrant, so the police police go to a judge and apply for a search warrant based on the probable cause to believe that the location of the phone will help them execute the arrest warrant. Here’s the interesting question: Should the judge sign the warrant application and issue the warrant? Or should the judge deny the warrant application?

On August 3, Magistrate Judge Susan K. Gauvey issued a fascinating opinion on this novel question: IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 2011 U.S. Dist. LEXIS 85638 (D.Md. 2011). Her answer: The Judge must deny the warrant application, as location information is broadly protected by the Fourth Amendment and government cannot use warrants to find out the location of people who have warrants out for their arrest. The timing of the case is extremely unusual, as it seems the case is moot and this is only an advisory opinion. If I understand the timing, Magistrate Judge Gauvey denied the application over a year ago, and the government was able to arrest the suspect some other way in the meantime. Judge Gauvey decided to hand down an opinion on the legal issue anyway, appointed defense counsel to argue for defense interests, and now, a year later, has handed down the opinion on why she denied that application back in 2010.

Still, the opinion is obviously intended to be important: It goes on for 172 pages in the slip opinion, or 60 pages single-spaced, and it reaches out to weigh in on a lot of big issues. I also note that her opinion includes excerpts from my recent House Judiciary Committee testimony (see pages 94-96 and 106 of the slip op). So I thought I would blog some thoughts on the opinion. I’ll start with Judge Gauvey’s opinion, then explain why I think it’s wrong, and then turn to a few broader thoughts on the role of magistrate judges in surveillance law.

I. Judge Gauvey’s Analysis

Here’s the basic reasoning of the opinion. First Judge Gauvey creates what a appears to be a new distinction in Fourth Amendment law: a distinction between (a) Fourth Amendment rights in location at a given time, and (b) Fourth Amendment rights in movement over time. According to Judge Gauvey, individuals have a reasonable expectation of privacy in both. There is a reasonable expectation of privacy as to a person’s location if a person cannot be visually observed in that same way. And there is a reasonable expectation of privacy in movements, which Judge Gauvey seems to be taking from the DC Circuit’s Maynard/Jones “mosaic theory” case (which the Supreme Court recently agreed to hear). Judge Gauvey then reasons that if everyone has this Fourth Amendment right, people who have warrants out for their arrest have this right to privacy, too. For that reason, the information held by the phone company as to the location of the phone user is protected by the Fourth Amendment.

Judge Gauvey then considers whether the Fourth Amendment allows a warrant to be issued based on probable cause that the information will help execute an arrest warrant. She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched. Mere probable cause to believe that location information would help the police execute a warrant is not enough under the Fourth Amendment. Judge Gauvey speculates that the Supreme Court would probably allow such warrants if the issue reached the Supreme Court, but she concludes that she “will not take that leap in the absence of any direct precedent or sufficient doctrinal foundation, especially in the face of considerable legislative and public concern and discussion about the invasion of privacy that this new and evolving location technology permits.” Judge Gauvey seems particularly unwilling to issue the warrant in light of all the hearings Congress has had over the past year on how the statutory surveillance law applies to cell-site location: “Against this backdrop of intense congressional inquiry and public concern,” she writes, it is especially inappropriate to sanction an expansion of law enforcement acquisition of location data . . . ”

II. Why I Think Judge Gauvey’s Decision is Wrong

My own view is that Judge Gauvey is pretty clearly wrong. Most fundamentally, I don’t think location information of phones is protected by the Fourth Amendment under Smith v. Maryland, for all the reasons I have explained at length. Part of the problem is that the Fourth Amendment does not deal in abstractions, with categories such as the right to privacy in “location” or right to privacy in “movement.” The Fourth Amendment is much more granular: The relevant question is whether the particular data stored in a particular place on a particular server is protected by the Fourth Amendment, and if so, who is it who has those rights and under what circumstances can that particular information be accessed and disclosed. Given that, Judge Gauvey’s abstract categories produce more heat than light. It doesn’t help that Judge Gauvey relies significantly on the “mosaic theory” opinion that the Supreme Court recently agreed to review.

Assuming Judge Gauvey is right that location information is in fact protected by the Fourth Amendment, then the next question is when the government can obtain a warrant to order the release of that information. This is actually a very interesting question of Fourth Amendment law. Notably, Payton v. New York concluded that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within,” and it seems a it strange that the arrest warrant allows the police to break into a suspect’s home but yet there is no ability to even get a warrant to find out the location of the suspect’s phone. Judge Gauvey seems to think that it would require a novel extension of Payton to say that Payton allows a warrant for location information to find the suspect, but I think she has the novelty question a bit backwards: It’s a novel application of the Fourth Amendment to say that it extends to location information, and that novelty sets up the new question of how Payton applies.

What’s the answer? I think this part of the opinion is actually quite difficult, but I would tentatively think that Steagald v. United States is fairly read to allow a Fourth Amendment warrant in this situation. Steagald considered what the police must do when the police think a suspect is in someone else’s home, and they want to execute an arrest warrant of the suspect there. Steagald ruled that the police must obtain a search warrant to do that: They must obtain a warrant to search the home for the person inside to safeguard the Fourth Amendment interests of the people who live there. The basic idea is that the search warrant based on probable cause to think that the object of the arrest warrant will be there makes the search of the place reasonable. The Steagald court was not focused on whether the person in the house was “evidence of crime,” but rather focused on the government’s need to justify the intrusion. Although it’s not an easy question, I think the same reasoning would justify a search of the phone company’s computer for location information of the suspect’s whereabouts to execute the warrant. But as I said, it’s a tricky question — one set up by the novelty of concluding that location information is protected by the Fourth Amendment.

III. A Few Concluding Thoughts

I think this opinion is interesting in two main ways. First, it’s yet another example of the recent practice of magistrate judges using their authority to grant or deny court order applications to hand down very broad opinions on novel issues of how the Fourth Amendment applies to computers and new technologies. I’m generally critical of this development, but it bodes well for those who strongly want the courts to be more civil libertarian in the surveillance law area. Because most judges will grant the applications without an opinion, but will be more interested in explaining why they denied an application, and because any judge can write an opinion at any time on why they are granting or denying the application, this procedure lets a few magistrate judges with very strong views (think Orenstein in New York or Smith in Texas) write opinions on novel questions when they rule on the application.

Although magistrate judges aren’t Article III judges, the magistrates can still submit their opinions to the F.Supp.2d and get them published. As as we see in this case, they can order briefing and submit the opinion over a year after the case is moot. Over time, these magistrate judge opinions are having an impact on the law even though they arise from only a small handful of non-Article III judges in quite unusual procedural contexts. (On that note, I see that over at the Robing Room there is this lawyer’s evaluation of Judge Gauvey form 2006: “She is extremely ambitious and fearless in using the publication of her rulings as a means to raise her profile.”)

Second, this issue is worth keeping in mind for the pending Supreme Court litigation in United States v. Jones, the GPS/mosaic theory case. When the Fourth Amendment mostly protects only invading private spaces, the scope of the warrant authority is reasonably clear: The Fourth Amendment warrant can be obtained to invade the private space for evidence or the suspect. On the other hand, if the Fourth Amendment is read to extend to location information even in public places, then that extension begins to raise new questions of when a warrant can be obtained to access that location information where it has been generated. This is also worth noting for the statutory debate over location information in Congress: As I noted in the passage Judge Gauvey excerpts from my House testimony, probable cause of what is an essential question in applying the probable cause standard.

A while back, I blogged at length about the Third Circuit’s pending case involving government access to historical cell-site records. The issue in the case is what legal standard the government must satisfy to obtain orders requiring phone companies to disclose such information. The district court had ruled that a warrant was required, and the government argued that the correct standard under the law was a “specific and articulable facts” court order under 2703(d) rather than a search warrant. Yesterday, the Third Circuit handed down its decision: In The Matter Of The Application Of The United States Of America For An Order Directing A Provider Of Electronic Communication Service To Disclose Records To The Government. In this post will explain the Third Circuit’s decision; try to figure out what it means (which turns out to be quite tricky); and then explain why I think it misreads the Stored Communications Act on an important point.

I. The Third Circuit’s Decision

The Third Circuit’s decision, written by Judge Sloviter, has three major parts. First, the court ruled that the government is right that under the Stored Communications Act, the government can obtain historical cell-site records under 2703(d) without getting a warrant. Second, the court agreed with amicus the Electronic Frontier Foundation that magistrate judges do not have to issue such orders. According to the Third Circuit, it is up to individual magistrate judges to make the decision of whether to issue the orders or else require a full probable cause warrant. Here’s the core argument:

Section § 2703(d) states that a “court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if” the intermediate standard is met. 18 U.S.C. § 2703(d) (emphasis added). We focus first on the language that an order “may be issued” if the appropriate standard is met. This is the language of permission, rather than mandate. If Congress wished that courts “shall,” rather than “may,” issue § 2703(d) orders whenever the intermediate standard is met, Congress could easily have said so. At the very least, the use of “may issue” strongly implies court discretion, an implication bolstered by the subsequent use of the phrase “only if” in the same sentence. . . .

Under the EFF’s reading of the statutory language, § 2703(c) creates a “sliding scale” by which a magistrate judge can, at his or her discretion, require the Government to obtain a warrant or an order. EFF Br. at 6. As the EFF argues, if magistrate judges were required to provide orders under § 2703(d), then the Government would never be required to make the higher showing required to obtain a warrant under § 2703(c)(1)(A). See id.

So according to the Third Circuit, a magistrate judge has discretion to turn down an application for an order even if the 2703(d) order is satisfied. The third and final question is, does the judge have absolute discretion to decide whether to turn down the order, or is there some guide that the magistrate judge is supposed to use?

Here things get fuzzy. Judge Sloviter instructs that magistrate judges should require warrants “sparingly,” for the reason that “Congress also included the option of a § 2703(d) order.” She also writes that magistrate judges do not have “arbitrary” discretion, and that in the rare cases that a magistrate decides to require a warrant, the judge must “make fact findings and give a full explanation that balances the Government’s need (not merely desire) for the information with the privacy interests of cell phone users.”

What exactly does that mean? That is, what is the standard? To be candid, I’m not sure. A discussion around pages 26-27 suggests that perhaps magistrates should to conduct an ex ante constitutional analysis of whether the cell-site surveillance would require a warrant under the Fourth Amendment. Here the court hints that in its view, cell-site surveillance is analogous from a constitutional standpoint to tracking device surveillance in United States v. Karo and United States v. Knotts rather than the numbers dialed in Smith v. Maryland: Because “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information,” a cell phone user has not conveyed that information to the phone company voluntarily and the third-party doctrine does not apply.

The analysis here is pretty murky, but perhaps the Court is suggesting that if cell-site surveillance reveals that a caller is at home during the call, then under Karo that information could be constitutionally protected and the judge should require a warrant? I’m not really sure what the court is suggesting — elsewhere the court suggests that the decision of what standard to use is entirely up to Congress, so perhaps I’m wrong about that. Ultimately the Third Circuit remands for fact-finding, so perhaps the Court is really punting the issues of what the standard is for another day. In the end, I’m not sure. (If you read the opinion differently and have ideas about the standard, please post them in the comment thread. I would very much appreciate it.)

Judge Sloviter ends with this criticism of the Stored Communications Act:

In the issue before us, which is whether the MJ may require a warrant with its underlying probable cause standard before issuing a § 2703(d) order, we are stymied by the failure of Congress to make its intention clear. A review of the statutory language suggests that the Government can proceed to obtain records pertaining to a subscriber by several routes, one being a warrant with its underlying requirement of probable cause, and the second being an order under § 2703(d). There is an inherent contradiction in the statute or at least an underlying omission. A warrant requires probable cause, but there is no such explicit requirement for securing a § 2703(d) order. We respectfully suggest that if Congress intended to circumscribe the discretion it gave to magistrates under § 2703(d) then Congress, as the representative of the people, would have so provided. Congress would, of course, be aware that such a statute mandating the issuance of a § 2703(d) order without requiring probable cause and based only on the Government’s word may evoke protests by cell phone users concerned about their privacy. The considerations for and against such a requirement would be for Congress to balance. A court is not the appropriate forum for such balancing, and we decline to take a step as to which Congress is silent.

II. Why I Think the Third Circuit’s Opinion is Incorrect

The first part of the Third Circuit’s opinion is pretty clearly right.  However,  I think the second part misunderstands the Stored Communications Act, and that the court’s constitutional hints are not persuasive.  In this part of the post, I want to explain why.

Continue reading ‘Third Circuit Rules That Magistrate Judges Have Discretion to Reject non-Warrant Court Order Applications and Require Search Warrants to Obtain Historical Cell-Site Records’ »