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In Re: Application for Telephone Information Needed for a Criminal Investigation

Closed Expands Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    July 29, 2015
  • Outcome
    Access to Information Denied
  • Case Number
    Case No. 15-XR-90304-HRL-1(LHK)
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Constitutional Law
  • Themes
    Privacy, Data Protection and Retention
  • Tags
    Data Protection and Retention, Electronic Search Warrant, Surveillance

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Case Analysis

Case Summary and Outcome

In this case, the government’s warrantless collection of cell phone site location information is being challenged. The court held that, in the collection of historical cell phone location data, the government must obtain a court order or valid order in order to obtain this information from cell service providers. The attainment of this information qualifies as a search because it is for information that individuals have a subjective expectation of privacy in and one that society recognizes as reasonable.


Facts

This case involves an appeal from a Magistrate’s ruling denying the government’s application to obtain cell site location information for identified cellular phones. The Defendant in this case is the Federal Public Defender for the Northern District of California. The American Civil Liberties Union and the Electronic Frontier Foundation filed amicus briefs.

Cell site location information is compiled automatically by cell service providers and provides a log of the location of a cell phone at any given time. Many companies keep records of this cell site location data for upwards of five years. This information is compiled not just when the user sends a text or call. Rather, the information is compiled every few minutes as a phone is sitting idle, during which the phone scans for cell towers and incoming messages and calls.

The Stored Communications Act allows for the government to obtain this information pursuant to a valid search warrant or a valid court order. The government in the case sought access to this information through a court order, which the Magistrate declined to issue.


Decision Overview

First, The court examined the application to determine whether, purposes of the fourth amendment, a “search” would take place if the government’s application were to be granted. The Court recognized a two-part test, established in Katz, to determine whether a search will occur. The test considers (1) if there is a subjective expectation of privacy, and (2) if this expectation is reasonable, as recognized by society. The court analogized the case of United States v. Karo, a case about tracking of a beeper inside the defendant’s home. The court in Karo found this tracking constituted a search, because it revealed intimate details about the home, a place where individuals have a reasonable expectation of privacy.

The government in this case, however, argued that the third party doctrine, which was established in U.S. v. Miller and Smith v. Maryland, destroyed any expectation of privacy individuals that may have regarding cell phone location data. Under the doctrine, this elimination of privacy occurs when an individual voluntary conveys information to a third party.

The court found evidence that society does not believe the location of their cell phone would be monitored continuously while the phone is on. Further, passive receipt of calls and texts by individuals does not constitute a voluntary conveyance. The passive receipt here is distinct from the facts in Smith, which involved the expectation of privacy in numbers that the individual had dialed. Therefore, the court found that there is a search in this case, because the information collected shows the cell phone’s location at all times and society has does not an expectation that this type of information will be conveyed to third parties.

Second, the court considered the exceptions to the warrant requirement when, as here, a search has occurred. The court reject the government’s argument of consent to the search, and it found that the exception to the warrant requirement did not exist here. Therefore, the government was required to obtain a warrant before obtaining this type of information. However, this failure to obtain a search did not invalidate the Stored Communications Act, because the Act provides that this information can only be disclosed pursuant to a valid warrant or court order showing reasonable grounds to issue the order.

Therefore, the court affirmed the lower court’s denial of the government’s application for cell phone location data.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This case expands freedom of expression and the protection of an individual’s right to privacy by denying the government the authority to conduct warrantless collections of historical cell site location information.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

National standards, law or jurisprudence

  • U.S., Smith v. Maryland, 442 U.S. 735 (1979)
  • U.S., United States v. Davis, 785 F.3d 498 (11th Cir 2015) (en banc)
  • U.S., Katz v. United States, 389 U.S. 347 (1967)
  • U.S., Kyllo v. United States, 533 U.S. 27 (2001)
  • U.S., United States v. Miller, 451 U.S. 204 (1981)
  • U.S., Florida v. Jardines, 133 S.Ct. 1409 (2013)
  • U.S., Stoner v. California, 376 U.S. 483 (1964)

    “rejecting the argument that ‘the search of [a] hotel room, although conducted without the petitioner’s consent, was lawful because it was conducted with the consent of the hotel clerk,’ because a hotel guest’s
    Fourth Amendment rights cannot be ‘left to depend on the unfettered discretion’ of a third party clerk.”

  • U.S., Missouri v. McNeely, 133 S.Ct. 1552 (2013)

    “explaining that in some jurisdictions ‘police officers can email warrant requests to judges’ iPads; judges have signed warrants and emailed them back to officers in less than 15 minutes.”

  • U.S., United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)

    “finding a reasonable expectation of privacy in the content of e-mails stored by a third-party service provider)”

  • U.S., Ferguson v. City of Charleston, 532 U.S. 67 (2001)
  • U.S., United States v. Jones, 565 U.S. 400 (2012)
  • U.S., California v. Ciraolo, 476 U.S. 207 (1986)
  • U.S., Riley v. California, 134 S.Ct. 2473 (2014)
  • U.S., United States v. Carpenter, No. 14-1572 (6th Cir. filed May 7, 2014)
  • U.S., In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t (“Third Circuit Opinion”), 620 F.3d 304 (3d Cir. 2010)
  • U.S., United States v. Cooper, No. 13-CR-00693-SI-1, 2015 WL 881578 (N.D. Cal. Mar. 2, 2015)
  • U.S., Oliver v. United States, 466 U.S. 170 (1984)
  • U.S., Brigham City v. Stuart, 547 U.S. 398, 403 (2006)
  • U.S., In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 541 (D. Md. 2011).
  • U.S., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)
  • U.S., Johnson v. United States, 333 U.S. 10 (1948)
  • U.S., United States v. Knotts, 460 U.S. 276 (1983)
  • U.S., United States v. Karo, 468 US 705 (1984)
  • U.S., Fernandez v. California, 134 S. Ct. 1126, 1132 (2014)
  • U.S., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)
  • U.S., City of Ontario v. Quon, 560 U.S. 746 (2010)

    “Cell phone and text message communications are so pervasive that some persons may consider
    them to be essential means or necessary instruments for self-expression, even self-identification.”

  • U.S., United States v. Jacobsen, 466 U.S. 109 (1984)

    “recognizing ‘a legitimate expectation of privacy’ in ‘[l]etters and other sealed packages’ even though they may be entrusted to third-party mail carriers while in transit.”

  • U.S., DeMassa v. Nunez, 770 F.2d 1505 (9th Cir. 1985)
  • U.S., Garner v. United States, 543 U.S. 1100 (2005)
  • U.S., United States v. Forest, 355 F.3d 942 (6th Cir. 2004)
  • U.S., United States v. Forrester, 512 F.3d 500 (9th Cir. 2008)
  • U.S., Couch v. United States, 409 U.S. 322, 335 (1973)
  • U.S., State v. Earls, 70 A.3d 630, 644 (N.J. 2013)
  • U.S., Tracey v. State, 152 So. 3d 504 (Fla. 2014)
  • U.S., Commonwealth v. Augustine, 4 N.E.3d 846 (Mass. 2014)
  • U.S., People v. Palmer, 24 Cal. 4th 856 (2001)
  • U.S., People v. Chapman, 36 Cal. 3d 98, 107 (1984)
  • U.S., People v. Blair, 25 Cal. 3d 640, 654-55 (1979)
  • U.S., United States v. Velasquez, No. CR 08-0730 WHA, 2010 WL 4286276 (N.D. Cal. Oct. 22, 2010)
  • U.S., United States v. Robinson, 414 U.S. 218 (1973)
  • U.S., United States v. Chadwick, 433 U.S. 1 (1977)
  • U.S., Riley v. California, 134 S.Ct. 2473 (2014)
  • U.S., CIA v. Sims, 471 U.S. 159 (1985)
  • U.S., In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011)

    “The fiction that the vast majority of the American population consents to warrantless
    government access to the records of a significant share of their movements by ‘choosing’ to carry
    a cell phone must be rejected.”

  • U.S., Colo. Rev. Stat. § 16-3- 303.5
  • U.S., Me. Rev. Stat. tit. 16, § 648
  • U.S., Minn. Stat. §§ 626A.28
  • U.S., Mont. Code Ann. § 46-5-110
  • U.S., Tenn. Code Ann. § 39-13-610
  • U.S., Utah Code Ann. § 77-23c-102
  • U.S., Ind. Code § 35-33-5-12
  • U.S., Md. Code Ann., Crim. Proc. § 1-203.1
  • U.S., Va. Code Ann. 19.2- 56.2
  • U.S., Wash. Rev. Code 9.73.260
  • U.S., Wis. Stat. § 968.373

Other national standards, law or jurisprudence

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.


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