Another Federal Judge Says No Expectation Of Privacy In Cell Site Location Info Because Everyone Knows Phones Generate This Data

In the Seventh Circuit -- where there's currently no Appeals Court precedent on cell site location info (CSLI) -- federal judge Pamela Pepper has decided only about half of what other courts have said about this info's expectation of privacy applies. That would be the half that finds the Third Party Doctrine covers cell phones' constant connections to cell towers. (via FourthAmendment.com)

Three circuits (4th, 5th and 11th) have ruled on whether obtaining CSLI from providers constitutes a search or seizure under the Fourth Amendment. Only the Fourth found that this information deserved greater privacy protections, mainly because of the ubiquitousness of cell phones. The other two held that CSLI is just another business record, even if it is the sort of business record that generates a detailed history of someone's movements and can be used to track someone in near real-time.

The Supreme Court also had something to say about the long-term tracking of people's movements in its decision about GPS tracking devices. While not exactly the same thing, it was close, and the court here examines this decision as well. The government suggested long-term location tracking might have enough Fourth Amendment implications to justify a warrant requirement, but stopped short of making that call.

With these non-precedents in hand, Judge Pepper finds there's no expectation of privacy in cell location info because -- like the government has argued in other cases -- everyone should know their phones are acting as ad hoc government tracking devices.

This court disagrees that today, when many Americans own some sort of cell phone and carry it frequently, an individual's expectation that the government could not track his whereabouts over time is reasonable. The media is rife with information-and sometimes warnings-about the fact that one's location can be tracked from one's cell phone.

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Popular culture promotes the notion that the government, too, can determine extensive information about an individual from, among other things, one's phone. In 2013, the news was filled with former National Security Agency contractor Edward Snowden's revelations regarding the extent to which the NSA allegedly was collecting phone metadata without warrants or court orders; controversy continues regarding whether such a practice was justified, necessary or lawful.

As long ago as 2004, the popular HBO series "The Wire" devoted an episode to the use of the disposable prepaid cell phones used by the drug-dealing characters in the show.

Because of the pervasiveness of this info, Judge Pepper argues that everyone show know that cell phones generate location data and that the government can access this information without a warrant. The first assertion is likely true. People are mostly aware that their phones connect with cell towers and that they're constantly being asked by websites for permission to use their location info, etc. But it's not likely true that most Americans are aware these records can be obtained without a warrant.

The two media references the judge uses to back her claim that cell phone users must be aware the government can obtain location data have nothing to do with location data. Both only deal with the government's warrantless acquisition of numbers dialled and received. Snowden's first revelations dealt with the collection of phone records from Verizon. In The Wire, drug dealers used burner phones not because they didn't want law enforcement to know where they were, but so the numbers dialled and received couldn't be tracked and their calls couldn't be wiretapped -- the latter of which requires a warrant. Even her statement that police TV shows have long shown officers determining someone's location by "triangulating signals" is a false equivalent, as that method requires officers on the move attempting to locate one person at a specific time -- which is nothing like obtaining weeks or months-long records of their travels.

Judge Pepper finds the Fourth Circuit's finding baffling, but only because she frames this as a logical leap all cell phone users should have made: that what they share with phone companies is also shared with the government.

This court also is puzzled by the Graham court's assertion that an individual has a reasonable expectation of privacy in cell tower data because she does not know which cell towers transmit the communications, or where they are located. Cell users know that they need to be in some sort of proximity to a tower in order to have cellular service. Those who drive specific routes each day to work know well the spots where they're likely to lose service, and where they will regain it. Subway riders know why they lose service when they enter the tunnels. Perhaps cell users do not know, at the moment they discover that they have reception, where the tower is located. But users of cell phones know, at all times, that if their phone is connected to a network, they're in some kind of proximity to a tower, and that if it is not connected, they likely aren't.

Again, this says nothing about whether the average person believes their interactions with their service providers are just between these two parties. The government usually isn't considered to be interchangeable with the third parties people enter into voluntary relationships with. Knowing that you must be connected to a cell tower to make calls or use data is not the same thing as knowing the government can obtain this information with little to no difficulty/paperwork.

In decisions like these, the "reasonable expectation of privacy" is based solely on what the government feels is "reasonable" -- far removed from the average citizen's view of what is "reasonably" private information.

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