This week, the Sixth Circuit Court of Appeals held, in United States v. Carpenter, that we lack any privacy interest in the location information generated by our cell phones. The opinion shows a complete disregard for the sensitive and revealing nature of cell site location information (CSLI) and a misguided response to the differences between the analog technologies addressed in old cases and the data-rich technologies of today.
In 2011, the FBI was investigating a string of robberies in and around Detroit. Relying solely on a court order, the FBI got several months of round-the-clock CSLI data on the two defendants in an attempt to link them to the crimes. CSLI are phone company records of cell phone towers your phone connects to at a given time and date. After the case was appealed to the federal appellate court, we joined the ACLU, the Brennan Center, CDT, and NACDL in arguing that acquiring this sensitive long-term, historical location information without a warrant violated the Fourth Amendment.
In reaching its contrary opinion, the Sixth Circuit repeatedly relied on old cases addressing much less intrusive “technologies” like letters and landline phones. Perhaps in an attempt to distinguish its earlier privacy-protective opinion in U.S. v. Warshak (which protected emails from warrantless searches), the court based much of its analysis on the distinction between content and “conveyance” information. It determined that CSLI was merely “information necessary to convey” a call, rather than the content of the call itself, and therefore access to CSLI records was not a “search” for purposes of the Fourth Amendment.
This analysis is a little different from many other cases we’ve worked on where courts have held that because your location information is shared with a “third party” cellphone service provider, you no longer have an expectation of privacy in it (the Sixth Circuit cited to this doctrine as well). Here, the Sixth Circuit seems to be trying to further minimize the sensitive nature of location information by analogizing it to the addressing information on the outside of a single envelope sent through the mail.
The court also distinguishes CSLI from the GPS tracking at issue in the Supreme Court case U.S. v. Jones, finding that CSLI is not nearly as precise as GPS. However, as we argued in our brief, the CSLI data in this case was precise enough for the government to convince a jury that the defendants were at each of the specific robbery locations. We also noted that the data was precise enough to place one of the defendants at church every Sunday, and we argued that the sheer scope of the data collected by the government—three months of continuous monitoring for one defendant and four months for the other—makes this data just as sensitive as the 28 days of GPS monitoring at issue in Jones.
In a particularly short-sighted part of the opinion, the court held that, in passing the Stored Communications Act in 1986, Congress somehow already “specifically legislated” on the constitutionality of warrantless law enforcement access to CSLI. Of course, it’s hard to imagine how Congress could have fully comprehended the privacy issues in CSLI, much less specifically addressed them at a time when mobile phones operated on a 1G network, were the size of a person’s head, and cost $3,300.
The concurring opinion points out many of these shortcomings. It notes that although CSLI is not as precise as GPS, it should nevertheless be analogized to location-tracking cases like Jones because the long-term, comprehensive monitoring possible through access to CSLI distinguishes it from envelope addressing information or business records like credit card information. The concurring opinion concludes that the court should develop a “new test” for technology like CSLI.
Ultimately, the court seems to shirk its constitutional responsibilities by arguing that because modern technologies “evolve at rates more common to superbugs than to large mammals,” the court was not properly equipped to address the privacy issues raised by CSLI. We think courts are fully equipped to address these issues now, and we hope the defendants decide to petition a larger panel of judges at the court to review this opinion. We’ll be ready with an amicus brief if they do.