Search warrant may be required for historical data
And I quote………….A Judge may require a search warrant for cell site location information 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, United States of America, Appellant, 620 F.3d 304, (2010)
The United States Government applied for a court order pursuant to 18 U.S.C. §2703(d) of the Stored Communication Act, to compel an unnamed cell phone provider to produce a customer’s historical cellular tower data (cell site locations). When the Government brought this order to a Magistrate Judge for approval, the Judge denied the application. The issue raised by the Magistrate Judge was whether the Government could obtain an order that would disclose a cell phone user’s location without showing probable cause. The Government sought this information in order to track a drug trafficker who had been able to evade visual surveillance. The Government argued that it could obtain such an order under the Stored Communications Act based on a reasonable belief that such information was relevant to a criminal investigation.
The Magistrate Judge concluded that the Stored Communication Act does not authorize access to an individual’s cell-phone-derived location information, either past or present, on a reasonable relevance standard. The Judge said that the Stored Communication Act expressly set movement and location information outside its scope by defining “electronic communications” to exclude any communication from a tracking device. The Judge was essentially saying that a search warrant showing probable cause would have to be applied for in order to obtain the phone user’s cell site locations.
The Government then appealed to the District Court, but again was denied, with the District Court affirming the Magistrate Judge’s decision. The government then appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit Court of Appeals vacated the Magistrate’s order denying the Government’s application and remanded the matter to the lower Court for further proceedings. The Third Circuit ruled that it could not accept the conclusion of the Magistrate Judge that cell site location information by definition should be considered information from a tracking device that required probable cause (search warrant) for its production. The court concluded that cell site location information consists of records of information collected by cell towers when a cellular phone user makes a call. In some instances cell site location information could be used to approximate the location of a person, but because there was no evidence that the cell site location information extended to privacy interests in the interior of a home, the Government could obtain cell site location information through the use of a court order under §2703(d), which only requires a showing of specific and articulable facts that there was reasonable grounds to believe that the contents of a wire or electronic communication, or the records sought, were relevant and material to an ongoing criminal investigation, i.e. not a probable cause determination. However, the Court did make a determination that in some instances §2703(d) did give the Magistrate Judge the option to require a probable cause warrant if the Magistrate Judge could provide a full explanation of why a warrant was required.
Thus requiring the Magistrate Judge to make fact findings and apply a balancing test that would balance the Government’s need for the information with the privacy interests of cell phone users. For example, a probable cause warrant may be required if the Government is interested in cell site location information that places the user within his or her home. But the Third Circuit did indicate that the way the present law is written, Magistrate Judge’s should use the option of requiring a search warrant sparingly.
So what does this mean for law enforcement, “status quo”, you should continue to seek cell site information the way you have been in the past, with the understanding that in some unique situations you may have to articulate probable cause if the Court believes the privacy interest of a user, outweighs the Government’s need for the information!
Without a doubt the best practice to obtain cell site data is with a search warrant. That being said, it has been my experience that cell site data can be obtained (most of the time) with only a Subpoena.
Now in the case that is referenced it seems to me that the Government had probable cause to obtain the cell site data, but chose to basically say “the law says I can.” He chose poorly in my opinion!
I don’t believe anyone would argue that the US Constitution grants us a reasonable expectation of privacy in our own home. In a sense doesn’t that pertain to phone calls made while we are in our residence?
Now if a Judge is trying to say that standard cell site data is not exact enough to determine if someone was actually in their residence (because they could have been at their neighbors house or the corner market) I believe that is a slippery slope. If that argument held true I wonder what the Judge would say about obtaining RTT ranging data, which is much more exact, but can still be off a tenth of a mile. Based upon the number of towers in the area the RTT data could possibly show with greater certainty that the target placed the call from his/her residence. I know the Court was not asked that specific question, but I wonder what they would say.