Pittsburgh Decision on Warrant Requirement for Historical Cell Site Records:
A few readers have e-mailed me about the Pittsburgh district court decision requiring a probable cause warrant for stored cell site records. The court affirmed a magistrate's ruling that the Stored Communications Act doesn't govern historical cell site records as a statutory matter, and thus that the Rule 41 probable cause warrant requirement applied by default. The court added that this statutory reading was bolstered by the likelihood that the Fourth Amendment also protected the information.

  I don't have time for a full post on this, but the Pittsburgh decision is plainly incorrect. Of course the Stored Communications Act covers this: It's a "record concerning an electronic communication service" under 18 U.S.C. 2703(c) which can be compelled with a Terry stop "specific and articulable facts" court order under 18 U.S.C. 2703(c)(2), not a warrant. Also, the notion that the Fourth Amendment protects cell-site info is just pretty clearly wrong under the Supreme Court's decision in Smith v. Maryland. A cell site signal is closely analogous to numbers dialed in Smith: It's a signal that the user sends to the phone company that is necessary for the phone company to deliver the user's calls.

  Some have tried to argue that cell site data is different than numbers dialed because (a) some people think that cell phones work by magic, rather than by sending communications to cell towers to let the provider know where the phone is located, and (b) location information is more private than numbers dialed information. But these arguments don't work, I think. First, it's hard to see why the Fourth Amendment should protect a user's failure to have a basic understanding of how technology works. Second, the numbers dialed from a landline phone also give location information: In fact, they tell the police that the person is inside their home, the most private of all places under the Fourth Amendment. The Smith court didn't think this was relevant, though, so under Smith I don't think it's relevant here, either.

  Critically, this doesn't mean that historical cell site data should receive no protection. Historical cell site data should and does receive the protection of the Stored Communications Act, which requires a court order based on a showing of specic and articulable facts to believe the information would be relevant and material to an ongoing criminal investigation. But under current law, a warrant shouldn't be required. Anyway, I hope the U.S. will appeal the decision; I would guess the Third Circuit will look at this differently. And for more on the Fourth Amendment issues here, you might be interested in my draft article, The Case for the Third Party Doctrine.