Does the Government Need a Warrant to Access Cell Phone Tracking Information? Third Circuit Says “No.”

Does the Government Need a Warrant to Access Cell Phone Tracking Information? Third Circuit Says “No.”

Big Brother is always watching and listening.  If there’s one lesson to take away from the recent NSA scandals it’s that the government is not only capable of tracking your every digital move, but also acting on that capability.  Now, according to the Third Circuit, the government can use the broad language of the Stored Communications Act to force cell phone providers to turn over a criminal suspect’s phone’s historical location data.

In a lengthy and drawn-out criminal investigation, the Third Circuit became the first federal court of appeals to decide a crucial issue that required balancing a cell phone user’s privacy rights with a law enforcement agency’s needs to acquire potentially vital information.  The government attempted to use the Stored Communications Act to force a suspect’s cell phone company to turnover cell site location information or CSLI.  Hoping to prevent an unjust and unwarranted intrusion or breach of a citizen’s privacy expectations, the Electronic Frontier Foundation (EFF) filed a response in opposition to the government’s efforts.  The Third Circuit was then forced to determine whether or not the government could obtain this information without first establishing probable cause or acquiring a warrant.

The information at issue in the matter is commonly kept by all phone companies and service providers as part of their routine business operations.  Every time a call is made via a cell phone, signals are transmitted via nearby cell phone towers.  These towers then collect and store data that can later be used to establish the general area where the individual was located when making the call at issue.  The information would not provide the exact location of the cell phone at the time of the call, but would instead allow the government to infer as to where the party where was located.  Even though this would seem like a minor distinction, in the eyes of the court it is incredibly important because it weakens any argument that the cell phone acts as a tracking device which would raise significant Fourth Amendment concerns under Supreme Court precedent.

According to the exact language of the Stored Communications Act, a court can order the disclosure of this information if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or other records or other information sought, are relevant and material to an ongoing criminal investigation.”  18 U.S.C. § 2703.  The government argued that it met this burden because the information it was seeking was relevant and material to an investigation of narcotics trafficking and other violent crimes.  The EFF attempted to combat these claims by arguing that to obtain the information the government must obtain a warrant by establishing probable cause.

Ultimately, however, the court held that the information was in fact obtainable by the government without a warrant or probable cause under the language of the Stored Communications Act.  According to the court, the Act’s language provided a specific test to determine whether an order granting the discovery of such information should be granted.  If Congress wanted to implement a warrant requirement, it could have specifically done so.  Instead, Congress chose the lesser standard of specific and articulable facts.

The court, however, also went on to hold that the Act’s language actually granted a magistrate judge discretion as to whether or not to require a warrant showing probable cause.  Because the Act states that an order “may be issued” rather than requiring it, a judge deciding whether or not to allow access to such information could require a showing of probable cause.

Additionally, the court established that a cell phone customer does not voluntarily share his or her location information with a service provider because the customer is probably unaware that their providers are in fact collecting and storing this historical information.    

Although the Third Circuit’s holding is strictly limited to the collecting of historical cell phone location information, the decision ultimately has far-reaching consequences.  In the field of electronic discovery, privacy is an ongoing topic of debate, especially with the recent revelations of the massive amounts of data the government is in fact already collecting.  Because electronically stored information can provide a bevy of potentially vital information in easily manipulated formats, law enforcement agencies will continue to access it wherever possible.  Courts will continually be asked to balance individual privacy concerns with the broad policies of discovery.

Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but has also completed significant coursework concerning the interplay between technology and the legal profession.  He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management. 

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