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Does accessing historical cell site information require a warrant?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Does accessing historical cell site information require a warrant?

Every summer I write my portion of the annual update for “Criminal Law in New York,” a book on substantive New York criminal law that I co-author with Brighton Town Court Judge, Karen Morris. During my research of the criminal cases handed down over the past year, I often come across cases that provide interesting insights on the intersection of criminal law and technology, and then write about them in this column.

This year one of the cases I discovered was People v. Jiles, 158 A.D.3d 75 (4th Dept. 2017), leave to appeal denied, 2018 WL 3811362 (2018). In this case, the defendant was convicted of murder in the second degree, robbery in the first and third degrees, and criminal possession of a weapon in the second degree. The defendant and unidentified accomplices were accused of holding four men at gunpoint in an apartment and taking money from them. During the robbery, another person entered the apartment, a struggle ensued, and the victim was shot and killed.

The prosecution had obtained the defendant’s cellphone records for the 4 days leading up to the robbery by means of a court order which was issued upon a showing of less than probable cause pursuant to the federal Stored Communications Act. The prosecution sought to introduce the records at trial to show the defendant’s location during the various times that he’d called the victim in the days preceding the robbery. The defendant moved to suppress the location information, but not the call records, on the grounds that the acquisition of that information constituted a search and thus required a warrant supported by probable cause.

The trial court denied the motion and the records were admitted at trial. One issue on appeal was whether it was necessary for law enforcement to obtain a warrant in order to access historical cell phone data.

At the outset, the Court outlined the breadth of information that can be obtained from cell phone data: “When citizens go about their lives with cell phones turned on, the phones can electronically register with the nearest cell tower every few seconds whether or not the phones are actively in use, and the business records of service providers can therefore contain information about the location of phones and their users at specific dates and times as the users travel the highways and byways of our state and nation.”

Next, the Court turned to the issue at hand, and in reaching its decision, it emphasized that the location data sought was historical, was kept as a matter of course by his cell phone service provider much like telephone billing records, and was information that the defendant had voluntarily disclosed to his services provider.

The Court explained that because the information was not obtained as a result of direct surveillance by law enforcement, but instead constituted historical data voluntarily provided to his service provider, a third party, that the data fell under the third party exception: “(W)e conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties.”

The Court also noted that “certain other states have afforded cell site location information greater protection under their state constitutions than it is afforded under the federal constitution” but declined to do so in New York, and instead likened location data to telephone billing records, which the New York Court of Appeals has permitted access to in the absence of a warrant. As such the Court concluded that “there is ‘no sufficient reason’ to afford the cell site location information at issue here greater protection under the state constitution than it is afforded under the federal constitution.”

I’m not sure I agree with the Court’s conclusion that this type of data is “voluntarily” disclosed to cell phone service providers, since at the present time, those of us who choose to use cell phones don’t have much of a choice in that regard: service providers collect that data as a matter of course and there’s no mechanism available to opt out. So our hands are essentially tied in that regard.

The Court did address this particular argument at the end of its opinion, noting that “(t)o the extent that ‘cell phone users may reasonably want their location information to remain private’ under these circumstances, their recourse is ‘in the market or the political process…”

Unfortunately, New York residents interested in protecting privacy rights and preventing law enforcement from arbitrarily accessing our minute-by-minute movements in the digital age, the Court’s suggested course of action provides no small comfort - and no immediate recourse - other than refraining from using cell phones altogether. For the vast majority of us, that’s not a feasible option, and thus we’re forced to agree to a full-scale waiver of our privacy rights in exchange for the ability to use a piece of technology that has become an integral part of our daily lives. Not exactly an equitable bargain, if you ask me.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.