United States: The Great Cell Phone Tower Data Debate Bound To Hit SCOTUS’ Docket Soon – Are We Living In George Orwell’s 1984?

Last Updated: January 5 2015
Article by Matthew S. Adams

Few things demonstrate the widespread digitization of our society more than the dramatic transformation of mobile telephones over the past two decades and the increasing reliance upon these revolutionary devices in our business and personal lives.  They have evolved from massive devices that required their own carrying cases and large, obtrusive, boom-like antennas, to the sleek, touchscreen mini-computers that have virtually replaced landline telephones and have allowed us to operate a mobile office, conduct a photo or video shoot, send a text message, or connect with family and friends via social media from virtually anywhere in the world.

The devices are so ubiquitous today that there is barely a litigation matter that I handle where some sort of mobile data does not become relevant, invoking enough legal issues to fill a multi-volume treatise.  However, one legal issue, given the advanced state of mobile technology and constantly expanding cellular networks, has proven more devisive than any other — whether the government can access location data from an individual's cell phone without a warrant.

In short, cell phone location data is ESI that is generated as a byproduct of the communications between a mobile device and the provider's network infrastructure that supplies the wireless voice and data services  for the phone.  It is an oversimplification of a vast network of specialized technology, but these mobile networks are driven by geographically placed equipment that ensures the seamless nature of the mobile service, commonly referred to as cellular towers.  When a customer moves about with their device, their device is constantly communicating with the provider's towers, ensuring continuity of service.  Because the provider's equipment is placed in fixed locations, access to the ESI generated by the device/tower communications can shed light on the general location of the device, and, therefore, reveal the approximate location of the person with the device.  While this data does not necessarily give you an exact location, it can be useful nonetheless.

It has been widely reported that law enforcement and the intelligence communities have routinely accessed and made use of cell site location data in an effort to locate individuals.    In fact, there have been reports that the government is actively utilizing specially designed equipment to assemble this form of ESI.  One might question the value of tower data in light of the fact that most modern cell phones are equipped with a GPS transmitter which could be a far more exact than the exercise in triangulation and overall imprecision attendant to mere tower data.  The answer to that question was largely provided by the United States Supreme Court in United States v. Jones, 132 S.Ct. 945 (2012), when the Court ruled, in a rare unanimous decision, that it was a violation of the Fourth Amendment of the United States Constitution to connect a GPS tracking device to a suspect's vehicle without a warrant.  While Jones fell short of conclusively answering all of the open questions presented as a consequence of the dramatic expansion of mobile phones and other similar technologies, both in terms of the number of users and the functionality of the devices, it has been quite impactful upon the tactics of law enforcement.  In the wake of the Jones decision, law enforcement is largely relegated to relying upon tower data for this type of operation.

The government has frequently taken the position that it does not need to obtain a warrant before obtaining and utilizing tower data, distinguishing its conduct in a cell tower data grab from the use of prohibited GPS tracking, and relying upon the "third party doctrine" in defense of the tactic as a legitimate investigative tool.  The third party doctrine states that there is no legitimate expectation of privacy in information that an individual voluntarily turns over to third parties.  The doctrine emerged from the United States Supreme Court's  decision in Smith v. Maryland, 442 U.S. 735 (1979).  Smith involved the installation of a "pen register" to create a record of all numbers dialed by a suspect in an effort to demonstrate that he was making threatening phone calls to the alleged victim.  To put it in perspective, a pen register is to some of today's advanced technologies what the abacus is to a modern calculator.  At trial, the defendant in Smith  moved to exclude the evidence derived from the pen register because the government did not secure a warrant.  The Supreme Court ultimately reviewed the case and determined that no warrant was required because the defendant had no reasonable expectation of privacy in information that was voluntarily turned over to a third party, in that case, the 1970s manifestation of the telephone company — prehistoric by today's technology standards.

The Fifth Circuit Court of Appeals has sided with the government in at least one instance involving the gathering of cell phone tower data without a warrant.  See In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013).  On the other hand, earlier this year, the Eleventh Circuit Court of Appeals weighed in on the topic, refusing to adopt the same position as its sister federal intermediate appellate court, and mandating a warrant for the collection of tower data.  See United States v. Davis, 754 F.3d 1205 (11th Cir. 2014).  The government later moved for rehearing en banc, and the government's motion was recently granted, meaning that the final chapter of Davis has not yet been written.

State courts are weighing in on this topic separately, applying their own constitutional jurisprudence, often applying more expansive protections to constitutional rights than the federal courts.  For example, the high courts in New Jersey, Massachusetts, and Florida have tackled the issue, and have each come out in favor of a warrant requirement.  These state court decisions are a win for privacy advocates, and I believe the logic employed by state jurists should carry some persuasive impact as federal law continues to develop in this area.

There is a strong opinion among court watchers that this critical issue is destined for certiorari to the Untied States Supreme Court.  Until then, it bears noting that this seems be a circumstance where traditional legal concepts have been simply outdated and outpaced by technological advances.  In today's society, the vast majority of us move around each day with a live transmitter in our pocket that constantly pings cell towers without our knowledge.  In my commute to my office each day, an approximately 20 mile journey, I likely traverse multiple cell tower coverage areas.  I certainly do no know where they start and stop, nor do I always use my mobile phone during that commute.  Yet, as I head to my office each morning, I constantly hear my phone's audible alerts signifying that I have new emails, text messages, or maybe even that I have received a Tweet.  Without my knowing it, my device is communicating with cell towers in order to receive those notifications.  I am hardly disclosing my personal whereabouts voluntarily to my service provider in order to make that happen.  Simply put, we do not knowingly turn over data to mobile telephone companies in the same way as was contemplated in Smith, where the defendant made the conscious decision to dial a phone number and a primitive investigative tool captured that volitional conduct.

In a prior post found here, I examined the need for clarity on whether expert testimony is required in digital forensics cases, or if law enforcement can simply recount the processes through which it secured certain ESI in support of the government's evidentiary presentation against an accused.  Imagine if the government could simply snoop on your cell phone tower data, and then make its own bald, unsubstantiated conclusions about what the ESI derived therefrom demonstrates?  That type of Orwellian scenario should be cause for great concern to everyone who believes in the Constitution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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