[Vision2020] Why Your Cell Phone’s Location Isn’t Protected by the Fourth Amendment

[Art Deco]

 [image: The New Yorker] <http://www.newyorker.com/>

August 5, 2013
Why Your Cell Phone’s Location Isn’t Protected by the Fourth Amendment
Posted by Orin Kerr<http://www.newyorker.com/magazine/bios/orin_kerr/search?contributorName=Orin%20Kerr>

 [image: cell-phones-tracking-580.jpeg]

In a major decision last week, the Fifth Circuit Court of Appeals
ruled<http://www.ca5.uscourts.gov/opinions/pub/11/11-20884-CV0.wpd.pdf>that
the location of your cell phone when you place a call is not protected
by the Fourth Amendment, which guards against “unreasonable searches and
seizures.”

Whenever you make a cell-phone call, your phone provider knows where you
are—it needs that information in order to find your device and complete the
call. Phone companies generally keep records of users’ locations when calls
are connected and disconnected. These logs, which store data about which
cellular sites phones connect to, are known as historical cell-site
records. Since most people keep their cell phones with them, a record of a
phone’s location generally provides a good lead on its owner’s location as
well. If the Feds want to know where you were last Tuesday at 9 P.M., for
example, they can get a pretty good idea by finding out where your phone
was.

The important legal question is how much protection these records receive
when the government wants to make providers turn them over. In other words,
what kind of evidence should the government be required to present in order
to get your location records from a cell-phone company?

Legal protections generally come in two forms: statutory protections
enacted by Congress and constitutional protections recognized by the
courts. Congress has protected historical cell-site records with an
intermediate threshold sometimes called reasonable suspicion. That’s the
same standard it must meet to justify stopping and frisking someone for
suspicious activity. Under Congress’s law, the government generally needs
to go to a federal judge with reasonable grounds for suspecting that the
records reveal a crime in order to access them.

If the Fourth Amendment’s ban on unreasonable searches and seizures
protected cell-site records, the government would be required to satisfy a
higher legal standard known as probable cause in order to obtain the
records—the level of certainty required to arrest someone or to search
their home for evidence. And unlike privacy protections enacted by
Congress, constitutional protections can’t be taken away by a future
legislature.

But in the new decision, the Fifth Circuit held that the Fourth Amendment
does not apply to historical cell-site information; statutory protections
are their only shield. If you want more privacy, the court suggested, your
best options are to call your Congressman or to ask your phone company to
enact a new policy to delete or anonymize its records.

The heart of the court’s reasoning is that there’s a difference between
communicating with the phone company to set up a call and communicating
through the company during the conversation that follows. When you’re
actually talking on the phone, the content of the call belongs to you and
the person you’re talking to—and the phone company can’t listen in. If the
government wants to tap the line, the Fourth Amendment applies and the
government needs a warrant.

But when you place a call, you need the phone company to route and direct
the call over its network, and to do that, your cell phone needs to
communicate with the phone company and disclose its location. That, the
court reasoned, is communication between you and the company. And the
record of whatever information your phone sent to the company belongs to
the company, not to you. If it wants to keep that record for business
purposes, it can. And if the government wants that record from the phone
company, that’s an issue between the two of them—not an issue between the
phone company and you.

The appeals court’s reasoning follows the 1979 Supreme Court decision in Smith
v. Maryland<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=442&invol=735>,
which found no Fourth Amendment protection in the numbers dialed to place a
call. According to that case, when you dial a phone, you’re communicating
to the phone company just like people communicated with a human operator
before phones had dials. The court ruled that while new technology had
automated the process, it made no substantive difference.

As a matter of precedent, the appeals court’s decision accurately follows
Smith v. Maryland. Lower courts are obliged to follow Supreme Court
decisions, and the analogy between dialing numbers and sending cell-phone
locations is pretty close.

There’s also a subtle wisdom behind the reasoning of Smith and the Fifth
Circuit decision<http://www.michiganlawreview.org/assets/pdfs/107/4/kerr.pdf>.
In a world before communications networks, the Fourth Amendment protected
the inside of your home, but it didn’t apply outside. If you wanted to meet
with someone in person, you had to go outside, where the police could watch
you and learn your movements.

Now, consider the role of the telephone network. Phones let your fingers do
the walking <http://www.youtube.com/watch?v=SYpJ1IgGoc0>: thanks to the
network, you don’t have to travel outside to speak to a friend who is miles
away. But your location information, told to the phone company, is the
network equivalent of the kind of information that used to be exposed to
the public—including the police—when you travelled in person to meet.

To maintain the traditional balance of Fourth Amendment protection across
new technologies, it makes sense for the Fourth Amendment to protect the
contents of calls but not the phone company records about where and when
the call occurred. The contents are like a conversation in a home, and
should remain protected; the records are like the outside travel, and
should remain unprotected.

Others argue <https://www.eff.org/node/70142> that the Fourth Amendment
should apply more broadly to keep the government at bay. Some look to the
concurring opinions in the 2012 Supreme Court decision in United States v.
Jones <http://supreme.justia.com/cases/federal/us/565/10-1259/>, which
applied the Fourth Amendment to G.P.S. surveillance. In that case, the
police suspected Antoine Jones, a nightclub owner in Washington, D.C., of
drug trafficking. The police wanted to track his movements to show his
involvement in the crime, so they attached a G.P.S. tracking device to the
bottom of a car he drove, and monitored it for twenty-eight days. The court
ruled that installing the physical device “searched” the car under the
Fourth Amendment. Five Justices added separate views that the twenty-eight
days of monitoring was a search, even if no physical installation occurred.

If tracking the location of a car over time is regulated by the Fourth
Amendment, as five Justices suggested in Jones, why shouldn’t tracking the
location of calls receive the same treatment? That argument will receive a
serious hearing in other
cases<https://www.aclu.org/files/assets/2013.07.02_-_doc_60_-_corrected_aclu_et_al._amicus_brief.pdf>now
pending in the federal courts. If other courts agree with the latter
view, the Supreme Court will likely agree to step in and resolve the lower
courts’ disagreement. But don’t expect it to review the Fifth Circuit’s
decision: because of the strange way the Fifth Circuit case arose, it can’t.

In most Fourth Amendment cases, there are two sides: the searchers and the
searched. Normally, if the government wins in a lower court, the individual
can ask a higher court to review that ruling. But in this case, the Feds
applied for several orders seeking records under Congress’s privacy
statute, and the first judge refused to issue the orders on Fourth
Amendment grounds. The government appealed the denial, and the Fifth
Circuit ruled for the government. But because the orders have not yet been
issued, the government is the only party to the dispute; no records have
been collected yet, and we don’t even know who the suspect is. Now that the
government has won, no one can appeal. (I filed a friend-of-the-court
brief<http://www.volokh.com/wp-content/uploads/2012/02/Kerr-Amicus-No-11-20884.pdf>arguing
that the court couldn’t rule on the constitutional issue because of
this strange procedure, but the court disagreed.)

The decision is a win for the government and police powers, with the caveat
that other cases are pending and may reach a different outcome. And if they
disagree, it will be up to the Supreme Court to decide.

*Orin Kerr is the Fred C. Stevenson Research Professor of Law at George
Washington University
<http://www.law.gwu.edu/Faculty/profile.aspx?id=3568>and a
contributor <http://www.volokh.com/author/orin/> to the Volokh Conspiracy.*

*Photograph by Mohammad Moniruzzaman/Corbis*

*Correction: The description of United States v. Jones was updated to
correct an editing error.*



-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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