Can Police Obtain Cell Phone Location Data Without a Warrant?

This week's Daily Record column is entitled "Can Police Obtain Cell Phone Location Data Without a Warrant?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Can Police Obtain Cell Phone Location Data Without a Warrant?

In their continuing effort to battle alleged criminals both big and small, police are turning to the newest technologies to track and locate suspects. The latest weapon in their arsenal is cell site location information (CSLI).

Increasingly, police agencies are seeking access to the CSLI data maintained by cell phone providers, which provides them with a customer’s past location records. This information is gleaned from the signals sent by the customer’s cell phone to the carrier’s cell phone towers. In many cases, these records are obtained in the absence of a warrant.

Just this summer, two New York courts addressed the legality of this practice and reached conflicting conclusions. The New York Appellate Division, First Department held that warrantless access to this type of information was permissible whereas just last week, the U.S. District Court for the Eastern District of New York held that warrantless access to CSLI data was unconstitutional.

First, in July, the First Department handed down their decision in People v. Hall, 926 N.Y.S.2d 514, (1^st Dept. 2011). The Court briefly addressed the constitutional issues presented and then concluded that access to three days of location surveillance in the absence of a warrant was permissible: “Obtaining defendant’s CSLI without a warrant did not violate the Fourth Amendment because, under the Federal Constitution, defendant had no reasonable expectation of privacy while traveling in public.”

In comparison, the EDNY reached the opposite conclusion (In the Matter of  an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 10-MC-897 (NGG)). After an extensive constitutional analysis, U.S. District Judge Nicholas Garaufis concluded that a probable cause warrant issued by a judge is required before law enforcement can obtain a customer’s CLSI data: “This court…seeks to resolve the question before it: whether the request for at least 113 days of cumulative cell-site-location records for an individual's cell phone constitutes a search under the Fourth Amendment…The court concludes that it does. Consequently, the information sought by the Government may not be obtained without a warrant and the requisite showing of probable cause.” 

Of course, this isn’t the first time this issue has been addressed, nor will it be the last. Courts across the country have reached conflicting decisions on this issue and the Supreme Court is expected to review a case that presents a similar issue.

Additionally, there are competing bills pending in Congress regarding geo-location data.

First, in June, Sen. Ron Wyden (D-Oregon) and Rep. Jason Chaffetz (R-Utah) submitted “The Geolocation and Privacy Surveillance Act,” which would require probable cause and a warrant before the government could access all types of geo-location data, including information related to past movements, such as CSLI data.

Meanwhile, Sen. Patrick Leahy (D-Vermont), proposed legislation that would only require a warrant for real-time cell phone data, not past data. Ironically, that same piece of legislation includes a provision that would require law enforcement to obtain a warrant prior to accessing data stored in the cloud.

With the rapid pace of technological change, Fourth Amendment privacy issues are of ever-increasing importance. That people choose to utilize technologies that provide private companies with extensive amounts of personal data does not mean the information magically becomes part of the “public realm” or that consent to governmental access of said data is somehow presumed.

As law enforcement becomes more creative in their efforts to spy on US. Citizens, changes must be made to ensure that our constitutional rights are not obliterated in the face of a fundamental lack of understanding of new technologies.  Or, as Judge Garaufis so eloquently put it: “While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion, the government's surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits. It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].