August 15, 2012 | By Hanni Fakhoury

To Make Sure Criminals Get No Location Privacy, the 6th Circuit Kills It for Everyone Else Too

A day after we filed an amicus brief arguing law enforcement needs a search warrant in order to obtain cell phone tracking data from wireless carriers, the Sixth Circuit Court of Appeals reached the opposite conclusion yesterday (PDF), killing privacy protections for a large swath of the country.

As part of an ongoing investigation into a drug trafficking organization, DEA agents obtained approval from a federal magistrate judge to access the "subscriber information, cell site information, GPS real-time location, and 'ping' data" from a pre-paid wireless phone through the use of an admininstrative order (PDF) issued under the Stored Communications Act, which does not require "probable cause" like a search warrant. On appeal the defendant Melvin Skinner, argued that the three day warrantless cell phone tracking violated the Fourth Amendment, but the Sixth Circuit disagreed.

In what can only be described as a results-oriented opinion, the court found Skinner had no reasonable expectation of privacy in the cell phone location data because "if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal." Otherwise, "technology would help criminals but not the police." In other words, because cell phones can be used to commit crimes, there can't be any Fourth Amendment privacy rights in them. If this sounds like an over-simplistic description of the legal reasoning in an opinion we disagree with, the sad reality is that the court's conclusion really did boil down to this shallow understanding of the law.

Completely missing in the court's analysis was any attempt to analyze whether a "search" occurred when the government accessed this data. Traditionally, this has meant that a court must undertake a two step inquiry: first determine whether a person has manifested a subjective expectation of privacy; and second, decide whether society would find that expectation of privacy reasonable. These questions are tricky, and courts that have considered the issue have reached differing results, including an opinion in the Third Circuit finding a search warrant may be necessary for cell tracking.

But the fact remains that previous courts ruling on the constitutionality of warrantless cell tracking have at least engaged the privacy questions, looking at not only the technology at issue and how precise cell site tracking has become over the years. The opinions have also explored the government's alleged statutory authority to apply for such orders, whether users truly are "voluntarily" turning over their location when they simply turn their cell phone on, and whether privacy rights are extinguished merely by virtue of this information being turned over to the cell phone providers. Its not just courts that are grappling with these issues. Legislation on both the state and federal level have attempted to balance privacy rights with law enforcement needs in order to ensure that cell phone tracking is available to the police without completely eroding privacy. 

But rather than engage in any of this analysis, or even acknowledge the prior, conflicting decisions on the issue, the Sixth Circuit took the lazy way out, noting that Skinner was only moving in public streets, and therefore the cell phone tracking was "no more of a comprehensively invasive search" than if the car was "tracked visually and the search handed off from one local authority to another as the vehicles progressed." Of course, earlier this year in her concurring opinion in United States v. Jones, a case deciding the constitutionality of long term GPS surveillance, Justice Sotomayor noted that she did "not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques." And in Kyllo v. United States, Justice Scalia's majority opinion made clear "the fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment."

The court's failure to even distinguish between "subscriber information," "cell site information", "GPS real-time location" and "ping data" only underscores the Court's lack of analysis. This data is not all the same, and it would be foolish for a court to extend the rationale behind allowing police access to "subscriber information"—things like the name on file for a particular account, as well as billing information and method of payment—to allow the police to obtain real time tracking location of a person's movements over a course of three days. After all, a "search" is determined by looking at how intrusive the government's actions are, and little is more intrusive than the government's ability to trace a person's every movement for an extended period of time.

The court's focus on Skinner's involvement in a drug trafficking operation and its emphasis on "burner" phones as being more difficult to trace highlights not only the Court's apparent understanding of The Wire, but what we think is the court's true concern: making sure a criminal charged with serious crimes remains locked up. Even Judge Donaldson, who concurred with the result but not the rationale of the majority, noted he did not agree with his colleagues' characterization of the issue as "whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from a cell phone used to effectuate drug trafficking." He laments that the majority opinion not only "focuses on the criminal conduct in which Skinner was engaged," but implies that possession of a prepaid phone "is somehow illicit or suspicious in itself."

Somehow, the Sixth Circuit lost sight of the fact that its attempt to ensure criminals cannot "use modern technological devices to carry out criminal acts" means that innocent people will have to lose their privacy rights. Judge Berzon of the Ninth Circuit (PDF) recently noted a fear that "understandable abhorrence" of child pornography crimes "can infect judicial judgment" and lead to incorrect legal results that erode constitutional protections against intrusive computer searches for everyone. This fear is even greater when the issue before a court is the scope of privacy protections for a cell phone, a device carried by far more innocent people than criminals. Judge Berzon wrote judges must "remember that the protections of the Fourth Amendment do not depend on the nature of the suspected criminal activity, any more than they do on the race or gender of the suspect."

With the the battle over warrantless cell tracking coming soon to the Fifth Circuit Court of Appeals, who will hear oral argument during the week of October 1 in a case in which we filed an amicus brief, we hope the judges of that court will look beyond the fact that criminals use cell phones, and remember that innocent people use them too.


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