Nearly a month after Edward Snowden leaked details of the National Security Agency’s electronic surveillance programs, the nation is still struggling with what the expectations of privacy are and should be.
For example, since the Supreme Court ruled a year and a half ago that law enforcement must prove probable cause before attaching a GPS tracker to a vehicle, federal law enforcement has been using cell-tower locational tracking of criminal suspects without securing a warrant.
When a cell phone makes a call, it connects to a cell tower via a radio signal. This signal has a measurable “ping” — the time it takes for the cell phone to be recognized by the cell tower. By comparing this number to a known duration-to-distance ratio, the distance between the cell phone and the cell tower can be figured. Because a cell phone must be in range of at least three cell towers to properly make a distortion-free call, a cell phone’s location can be triangulated in real time.
“A mobile user, in the course of his or her daily movements, will periodically move in and out of large and small sectors,” the American Civil Liberties Union argued in an amici curiae brief for the United States v. Graham and Jordan. “Even if the network only records cell tower data, the precision of that data will vary widely for any given customer over the course of a given day, from the relatively less precise to the relatively very precise, and neither the user nor the carrier will be able to predict whether the next data location collected will be relatively more or less precise. For a typical user, over time, some of that data will inevitably reveal locational precision approaching that of GPS.”
A complicated problem
Because a cell phone, when turned on, is always transmitting to nearby cell towers to determine the nearest receiver with the strongest reception, everyone that carries a cell phone is also carrying a de facto tracking device. The consequences are shocking. As of December 2012, the number of wireless subscriptions in the United States were 326.4 million, or 102.2 percent of the national and territorial populations of the country. Nearly thirty-six percent of all households in the U.S. use only wireless phones. In 2012, the nation used 2.3 trillion cellular minutes, and sent 2.2 trillion text messages. Americans also sent 1.3351 exabytes, or 1.468 trillion megabytes, of wireless data — an amount equivalent to slightly more than a quarter of all the words ever spoken by all of the humans in the course of history.
Depending on where one lives in the country, the legal consequences vary. In the 6th U.S. Circuit — which decides federal cases in Kentucky, Michigan, Ohio and Tennessee — the Court of Appeals ruled that probable-cause warrants are not needed to obtain cell-site data.
“If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal,” ruled Circuit Judge John Rogers for the majority. “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police.”
Meanwhile, in the 5th Circuit — which oversees Louisiana, Mississippi and Texas — the Court of Appeals is considering a challenge brought against a district court ruling that “compelled warrantless disclosure of cell site data violates the Fourth Amendment.”
Finally, in the 4th Circuit — which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina — a decision from U.S. District Judge Richard Bennett is being reviewed by the Court of Appeals. In this case, Aaron Graham and Eric Jordan, who were allegedly involved in a string of Baltimore fast-food restaurant robberies, moved to have cell-tower evidence stricken based on Fourth Amendment protections.
Bennett ruled, “For the following reasons, this Court concludes that the Defendants in this case do not have a legitimate expectation of privacy in the historical cell site location records acquired by the government. These records, created by cellular providers in the ordinary course of business, indicate the cellular towers to which a cellular phone connects, and by extension the approximate location of the cellular phone. While the implications of law enforcement’s use of this historical cell site location data raise the specter of prolonged and constant government surveillance, Congress in enacting the Stored Communications Act, has chosen to require only ‘specific and articulable facts’ in support of a government application for such records.”
No clear direction
Despite this confusion, the Supreme Court has waved off any attempts to issue a concise national ruling on the matter. A petition for a writ of certiorari to review the 6th Circuit’s ruling was rejected by the Court on June 24.
The Justice Department has held that there is no expectation of privacy in public places. This view is directly contrasted by privacy advocates, such as the ACLU, the Electronic Frontier Foundation, the Center for Democracy & Technology and the National Association of Criminal Defense Lawyers.
“A cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way. . . . [I]t is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information,” the groups wrote in an amici curiae brief for U.S. v. Graham. “Therefore, ‘[w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.’”
Besides the 4th, 5th and 6th Circuits, the 3rd U.S. Circuit Court of Appeals — which considers appeals in Delaware, New Jersey and Pennsylvania — ruled in 2010 that lower courts can require that warrants for cell-tower data be obtained in order to admit the data as evidence.
In the 1967 decision of Katz v. United States. the Supreme Court held that the Fourth Amendment offers a person a “reasonable expectation of privacy” — that is, people expect privacy and society as a whole would consider that expectation legitimate. While it can be argued that tracking a car or a person in public is not a private action, making a telephone call is arguably private. However, the Supreme Court has also ruled that information a person “knowingly exposed” to a third party — such as bank records, telephone numbers and grocery receipts — are not private and are not owned by the individual.
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