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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.
Dilan Esper (mail) (www):
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.

Your analysis of the case sounds right to me, but there's something that "feels" strange about the argument I quote above. Yes, I suppose that landline numbers inherently transmit location information. But on the other hand, couldn't a court hold that all that Smith holds is that the police can get the number, and there's no holding re: location information? It's almost like the Catholic principle of double effect-- there might be a difference between incidentally obtaining the location information because there's no way to not receive it when obtaining the number, and actually obtaining location information independent of the number.

Not sure if there's a policy argument in favor of recognizing that distinction, though (other than a general sense that it is more privacy-protective).
9.12.2008 10:13pm
zooba:
The statement "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" conflicts with several of your justifications of the third party doctrine.


First, the doctrine ensures the technological neutrality of the Fourth Amendment.


This is certainly not the case where the conveyance of information to the third party is not a strict and obvious requirement of the functionality of the technology. In the case of cell-phones, substantially similar functionality could be obtained without cell site information (i.e. only E911 and similar services would be lost). The conveyal of cell site information is mainly for the benefit of the cellphone company's security and efficiency of the network. It's entirely possible that there are alternate technologies, which convey different degrees or kinds of information to the 3rd party, but appear functionally identical tot he end user. The result is the 4th amendment question turns on the specific type of technology, not the end user's reasonable expectations. In many cases the implementation will be unknown or unknowable by the end user (i.e. what degree/type of information is conveyed to the 3rd party is a trade secret).


The third-party doctrine corrects for the substitution effect of third parties that would otherwise allow savvy criminals to substitute a hidden third-party exchange for a previously public act.



When the type of information conveyed to third parties is limited in potential expressiveness, there is little opportunity for abuse. When the criminal has no way of knowing the information is sent to the third party, there is no potential for abuse.


Second, the doctrine helps ensure the clarity of Fourth Amendment rules. It matches the Fourth Amendment rules for information to the rules for location, creating clarity without the need for a complex framework of sui generis rules.


Except since the rules for 3rd parties and location are already a mess, no clarity is gained from matching them. When does a guest gain a reasonable expectation of privacy? Probably if staying overnight, but how many hours, and as long as they aren't counting drugs and money? It's pretty much a whatever the court feels like test.
9.12.2008 10:21pm
mums (mail):
The SCA proscribes access to information from "tracking devices," which a cell phone must be considered due to its broad definition. Historical cell site information originates from a tracking device. Additionally, because historical cell site records are excluded from the category of accesssible information under the SCA, the information may not be reincorporated into the SCA simply because it is deemed "information pertaining to a subscriber's service." It has already been excluded.
9.12.2008 10:39pm
some random guy:
Additionally, because historical cell site records are excluded from the category of accesssible information under the SCA, the information may not be reincorporated into the SCA simply because it is deemed "information pertaining to a subscriber's service."

That would be a great argument, except for the fact that even EFF, ACLU, and CDT explicitly rejected it and conceded in their amicus brief (see page 7) the applicability of the Stored Communications Act.
9.12.2008 11:54pm
Ian Samuel (mail) (www):
The decision is correct. For a complete account of why, see:

Ian Samuel, Warrantless Location Tracking, 83 N.Y.U. L. REv. (forthcoming October 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1092293.

The short version: it's at least ambiguous whether the electronic surveillance statutes cover this information. The Fourth Amendment argument thus informs the reading of these statutes. Smith just isn't as broad as Professor Kerr suspects. Revealing that someone somewhere is dialing phone numbers from their home is very different indeed from being able to track their movements, as Knotts and Karo firmly establish.
9.13.2008 12:07am
some random guy:
The Fourth Amendment argument thus informs the reading of these statutes.

With all due respect, that's gibberish. The statutes say what they say; the meaning of none of the relevant provisions turns on any question of constitutional law.

If what you mean is "the Fourth Amendment protects this information, and the statutes should therefore be read narrowly under the doctrine of avoidance," then say so. Of course, that still obliges you to come up with a cogent Fourth Amendment argument, about which more below.

as Knotts and Karo firmly establish

Actually, Karo holds explicitly that the police can use a tracking device to locate an item in a multi-unit storage facility -- indeed, even track it to a specific row of lockers -- without engaging in a "search" or otherwise infringing the Fourth Amendment, provided they don't track it to a specific locker or other closed private space. In light of that fact, the claim that Knotts and Karo "firmly establish" a rule against tracking someone's movements is pure bunk.
9.13.2008 12:26am
mums (mail):
Dear "some random guy,"

Amicus briefs sure have a lot of precedential weight. I could concede your interest groups, and raise you a more weighty W.D. Pa. opinion.

It's rather simple, excluded info can't be reincorporated.
9.13.2008 12:51am
Chico's Bail Bonds (mail):
Relying on Smith v. Maryland to say a decision is "clearly wrong" is sort of like saying in 1936 that a decision that failed to take Lochner to its logical extreme is "clearly wrong." There's lots of cases that can't be squared with Smith. Given how poorly reasoned Smith is, it should be no surprise courts will adopt the view of cases in tension with Smith over Smith itself.
9.13.2008 1:37am
OrinKerr:
Chico's BAil Bonds,

I believe you're incorrect: Smith v. Maryland was correctly decided, and in fact is a necessary flip side to Katz v. United States. If you think Katz was correct, you should also agree with Smith; both are about ensuring the technological neutrality of the Fourth Amendment. See my article for the details.

Plus, even if you think Smith (or Katz) was incorrect, it's not the job of a trial judge in Pittsburgh to announce that that he is rejecting several decades' of Supreme Court decisions. Lower courts have to follow the Supreme Court, not their personal visions of what they want the Constitution to mean.
9.13.2008 2:02am
Bruce:
Orin, why isn't the cell phone a tracking device? 18 USC 3117: "As used in this section, the term 'tracking device' means an electronic or mechanical device which permits the tracking of the movement of a person or object." Or if it is a tracking device, why doesn't Fed. R. Crim. P. 41(d) provide the required standard?
9.13.2008 2:22am
Cory J (mail):
Judge Lenihan, the Magistrate, taught my trial advocacy class at Pitt.

I had no idea this case was going on. Interesting!
9.13.2008 2:37am
Cory J (mail):
Interesting to me, that is, especially since the order was handed down while I was taking the class.

I don't think anyone else will find it that interesting.

[For the record, Judge Lenihan is very nice and a great teacher. Of course, that has nothing to do with this matter.]
9.13.2008 2:43am
neurodoc:
Professor Kerr, why did the Washington Post note that you, "a constitutional law expert at George Washington University, said the decision was 'very likely wrong' and faces 'an uphill battle on appeal,'" but give none of your reasoning? I presume you shared some of it with the reporter. Not very informative reporting.
9.13.2008 2:56am
Ian Samuel (mail) (www):
Actually, Karo holds explicitly that the police can use a tracking device to locate an item in a multi-unit storage facility -- indeed, even track it to a specific row of lockers -- without engaging in a "search" or otherwise infringing the Fourth Amendment, provided they don't track it to a specific locker or other closed private space. In light of that fact, the claim that Knotts and Karo "firmly establish" a rule against tracking someone's movements is pure bunk.


Well, maybe you're right, but I didn't say that they did establish such a rule. You're speaking at much too high a level of generality, anyway. How could there be a "rule against tracking someone's movements" or a "rule allowing tracking someone's movements?" Neither one could be squared with the relevant statutory or constitutional law.

I said that Knotts and Karo establish that tracking someone's movements is different than recording the telephone numbers that they dial. They do so establish. I therefore don't think that the pen register cases are the first and last word on these matters.
9.13.2008 3:46am
SKardner (mail):
Plus, even if you think Smith (or Katz) was incorrect, it's not the job of a trial judge in Pittsburgh to announce that that he is rejecting several decades' of Supreme Court decisions. Lower courts have to follow the Supreme Court, not their personal visions of what they want the Constitution to mean.

Why not? If there is an open question of law and novel facts to which the law would apply, why can't a lower court judge stick his neck out? He is independently appointed, too. He too has an obligation to the Constitution. If he gets it wrong, the Supreme Court can correct him.
9.13.2008 4:40am
Reasoner:
GPS data isn't necessary for the phone company to deliver the user's calls. The government had to mandate it's inclusion into cell phones. Cell companies tried for years to find a way to meet the government location reporting mandate and avoid having to include GPS in their phones. It was claimed that the purpose of the mandate was to enable finding the location of 911 callers. But that was only a minor benefit of mandating GPS that was used as a cover story for the real reason, which was to give the government the ability to track everybody. The proof that locating 911 callers was not the reason for the mandate is that the government could have made GPS inclusion optional. If they were concerned about the cost they could have mandated that GPS and non GPS phones be offered at equal cost. But they didn't want people to be able to opt-out.

It should be noted that the GPS even allows tracking between rooms in your own house. I think that's a violation of your privacy. Records of when you were home making phone calls is of course a violation of your privacy, but not that big of one since the fact that your home is yours generally isn't a secret, and people generally expect a person to be at their own home from time to time. GPS also allows determining what doctor and lawyer you've been visiting. Knowing what examination room your doctor took you to can reveal information about what medical conditions you have. The amount of private information that location tracking can reveal is enormous.
9.13.2008 6:23am
some random guy:
GPS data

This case isn't about GPS data, or about ongoing/real-time tracking. It's about past records of which cell towers carried particular calls for a given phone. Those records aren't even close to pinpoint accuracy -- more like an approximate range of hundreds of yards.
9.13.2008 9:49am
some random guy:
why isn't the cell phone a tracking device [per] 18 USC 3117 [...] Or if it is a tracking device, why doesn't Fed. R. Crim. P. 41(d) provide the required standard?

It's not a tracking device because section 3117 "governs the 'installation' of tracking devices. The 'tracking' of a cell phone does not require the installation of any sort of device." In re Applications, 509 F. Supp. 2d 76, 81 n.11 (D. Mass. 2007); accord In re Application, 405 F. Supp. 2d 435, 449 n.8 (S.D.N.Y. 2005); In re Application, 460 F. Supp. 2d 448, 461 (S.D.N.Y. 2006).

Pages 11-17 of the government's initial brief would seem to address your question at length. Footnote 9 (p. 17) points out why Rule 41 is inapplicable, and in the alternative why the Rule doesn't even impose a probable cause requirement on orders for tracking devices (quoting from the 2006 Advisory Committee notes).
9.13.2008 10:12am
Ex-Yinzer:
Why do you keep throwing Pittsburgh into the equation? That "trial judge in Pittsburgh" happens to be a federal district judge. The correctness of the merits notwithstanding, I'm not sure I (or T. Zywicki) appreciate your trying to undermine a decision just because the judge happens to sit in the 'burgh.
9.13.2008 10:44am
OrinKerr:
Ex-Yinzer,

The district judge just rubber-stamped the magistrate's ruling, actually, so we're really critiquing the decision of a magistrate judge. As for why I mention Pittsburgh, I suppose I am being biased by my experience as a Third Circuit clerk a decade ago: I suspect most Third Circuit clerks, past and present, will get its significance.
9.13.2008 1:39pm
Hey!:
As for why I mention Pittsburgh, I suppose I am being biased by my experience as a Third Circuit clerk a decade ago: I suspect most Third Circuit clerks, past and present, will get its significance.
As an ex W.D.Pa. clerk, I resemble that remark! Grrr. . .

I recall back in the 1980s when Ruggero Aldisert was Third Circuit Chief Judge - with chambers in Pgh. - he was once overheard complaining to a tier-1 law professor that he wasn't seeing clerkship applicants of nearly as high quality as his brethern in Philthy-delphia. Apparently anti-Yinzer bias and/or residual prejudice stemming from Pgh's. old image as "He** with the lid off" inhibited some from applying for even a really good clerkship opportunity in that town unless they either had a current connection to the city (e.g., attending tier-2 Pitt Law School) or grew up there.
9.13.2008 3:49pm
Bruce:
Thanks Some Random Guy. I still think the cell phone is clearly within the scope of 3117(b). The argument, I suppose, is over how to interpret "installation" for purposes of determining when you can get (need?) a warrant. But getting even historical cell site data seems to me functionally identical to installing a tracking device, so this seems like a legal loophole at best.

Second, I don't think it ultimately matters, but I was intrigued by the government's claim that cell site data is just a record of phone calls, and therefore records about wire communications. Doesn't cell site data include all of the cell phone's "here I am" chirps to the tower? If so, those are clearly not wire (voice) communications, and then the magistrate judge's argument that they're also excluded from the definition of "electronic communications" kicks in.

I think I buy the government's argument, though, that they would still "pertain to" the subscriber, regardless of whether they concerned electronic communications or not.
9.14.2008 1:40am
some random guy:
Doesn't cell site data include all of the cell phone's "here I am" chirps to the tower?

No. A relevant passage from the government's brief:
Cellular telephone companies keep, in the regular course of their business, records of certain information associated with their customers’ calls. Exhibit C contains an exemplar of these records from a major carrier, Sprint-Nextel, the same carrier whose records are at issue in the present case. [FN2] As reflected in Exhibit C, the records include for each call a customer made or received: (1) the date and time of the call; (2) the telephone numbers involved; (3) the cell tower to which the customer connected at the beginning of the call; (4) the cell tower to which the customer was connected at the end of the call; and (5) the duration of the call. The records may also, but do not always, specify a particular sector of a cell tower used to transmit a call. [FN3] No such record is created when the phone is not in use.

[FN2 Because these records contain sensitive information pertaining to a recent investigation, certain identifying information – the telephone numbers involved – has been redacted.]

[FN:3 Cell towers are often divided into three 120° sectors, with separate antennas for each of the three sectors. To the extent this information does exist in a particular instance, it does not provide precise information regarding the location of the cell phone at the time of the call, but instead shows only in which of the three 120°, pie-slice sectors the phone was probably located.]
9.14.2008 9:00am
mums (mail):
By triangulating the signals off multiple cell site towers, cell phone possessors can be tracked within feet. Ninety percent of possessors can be located within thirty feet.

Some random guy,

Just as you cited amicus briefs, I take issue with the portion of the government's brief you cited. Cell phone emit their signals to cell site towers constantly, approximately every seven seconds to ensure the phone has the best signal strength. This occurs regardless of whether a call has been placed. To be sure, this does not occur if the user turns the phone OFF.
9.14.2008 10:42pm
some random guy:
By triangulating the signals off multiple cell site towers, cell phone possessors can be tracked within feet. Ninety percent of possessors can be located within thirty feet.

Gosh, that's really incredible, given that the FCC accuracy requirement for 95% of calls is 300 meters. (See 47 C.F.R. § 20.18(h)(1).) Who makes up these facts for you?

Cell phone emit their signals to cell site towers constantly, approximately every seven seconds to ensure the phone has the best signal strength.

Whether that's true or not -- and it's pretty unlikely, given the heavy power drain &correspondingly reduced battery life that would result -- is irrelevant because no running record is kept.
9.15.2008 1:37pm