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Appeals Court Rules Fourth Amendment Does Not Protect Cell Phone Location Data

By Catherine Crump, ACLU Speech, Privacy and Technology Project | August 15, 2012

Yesterday the Sixth Circuit Court of Appeals issued an unfortunate and legally incorrect decision holding that the Fourth Amendment provides no protection against warrantless cell phone tracking. Although couched in language stating narrowly that the Constitution does not protect criminals’ “erroneous expectations regarding the undetectability of their modern tools,” the impact of the opinion sweeps far more broadly, holding that the innocent as well as the guilty lack Fourth Amendment protection in cell phone location information. This is wrong, for a number of reasons.

The defendant in the case is one Melvin Skinner, who was allegedly involved in a marijuana trafficking operation of epic proportions. After a complex investigation by the Drug Enforcement Administration, Skinner was busted while in possession of over 1,100 pounds of marijuana. The DEA tracked Skinner down in part by obtaining various kinds of location tracking data for the cell phone he was using: cell site information, GPS real-time location, and “ping” data. Law enforcement agents appear to have tracked Skinner’s movements using this information for about three days.

The ACLU has argued repeatedly that the Fourth Amendment provides protections against warrantless cell phone tracking, particularly continuous tracking over prolonged periods of time such as the three days at issue in Skinner’s case. The Fourth Amendment protects people’s reasonable expectations of privacy, and people reasonably expect that they will not be subject to this invasive form of surveillance. That is because location data is very sensitive, revealing private facts. As an appeals court has observed:

A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.

That is not to say that law enforcement agents can never obtain cell phone location data. The question, rather, is under what circumstances they are permitted to do so. Because of the privacy interests at stake, law enforcement should have to go to a judge and get a warrant, which involves proving that they have probable cause to believe that tracking location would turn up evidence of a crime. There are numerous police departments that get a warrant for cell phone tracking, and it’s the best way to ensure that law enforcement can do its job while also protecting Americans from having their privacy needlessly invaded.

Unfortunately, that is not the conclusion drawn by the Sixth Circuit. The majority practically scoffed at the idea that Melvin Skinner had any reasonable expectation of privacy in “data emanating” from his cell phone. This passage best captures the court’s view that Skinner’s claim to constitutional protection was the height of audacity:

The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen.

In other words, a person’s ignorant belief that he has made a clean getaway does not shield him from detection.

But this is not the right question. The mere fact that the police are capable of tracking someone doesn’t mean they’re entitled to do so without first getting a warrant, any more than the mere fact that it’s easy to break down someone’s front door or open their postal mail gives the police the right to take these steps without a warrant. The question, rather, is whether a police action invades a person’s reasonable expectation of privacy that society is prepared to recognize as reasonable. Because people reasonably expect privacy in their movements, as the D.C. Circuit explained in the passage above, the Fourth Amendment provides us with protection.

If a suspected criminal’s phone can be tracked without a warrant, then all of our phones become tracking devices that the government can use to monitor us for any reason or no reason at all.

The Sixth Circuit was able to reach the conclusion that it did by relying on a 25-year-old Supreme Court case dealing with a more primitive tracking technology known as a “beeper.” In the beeper case, United States v. Knotts, the police used a combination of visual surveillance and signals from the beeper to track an investigative target as he traveled on public roads. The Supreme Court approved the tracking in Knotts, and the Sixth Circuit found that the DEA’s tracking of Skinner was not meaningfully different:

Similar to the circumstances in Knotts, Skinner was traveling on a public road before he stopped at a public rest stop. While the cell site information aided the police in determining Skinner’s location, that same information could have been obtained through visual surveillance. There is no inherent constitutional difference between trailing a defendant and tracking him via such technology.

This is really the heart of the matter. The Sixth Circuit’s fundamental error is in believing that a technological change that makes it vastly more feasible to track us all in great detail, continuously, and at little cost is simply irrelevant. It is not irrelevant. It is highly significant. Physically tailing a person for days on end requires a mass commitment of resources, which in turn limits the possibilities for abuse. The police aren’t going to enlist huge numbers of people for a massive surveillance operation without a very good reason. But when a single police officer can achieve the same level of surveillance using GPS, all while sitting at his desk and flipping open a laptop, the situation is radically transformed. As the invasiveness of tracking and the ease of tracking increase, the supervision of courts applying meaningful constitutional standards become all the more important.

The Sixth Circuit is the first court of appeals to address the Fourth Amendment and cell phone tracking after the Supreme Court’s decision in United States v. Jones that when the police attach a GPS device to a car, that is a search under the Fourth Amendment. But Jones will be of little value if the police can simply track cell phones instead of cars and, with the Sixth Circuit’s decision holding that they can indeed do so, we’re off to a bad start. The Fifth Circuit is poised to consider the same issue later this year and has scheduled argument for October. Let’s hope that it’s more sensitive to the privacy interests at stake than its sister circuit.

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August 15, 2012 Posted by | Civil Liberties | , , , , , | Leave a comment

Time to Make Warrantless Home Video Surveillance Extinct

By Hanni Fakhoury | EFF | May 2, 2012

It seems that the government’s thirst for high tech surveillance can’t be quenched. First, came the NSA’s warrantless wiretap program. Then it was CISPA. Now, its warrantless video surveillance in the home. And just like we stood up against the NSA and CISPA, yesterday we told the Ninth Circuit Court of Appeals that invasive warrantless home video surveillance violates the Fourth Amendment.

Ricky Wahchumwah, a tribal member of the Yakima Nation, was suspected of selling bald and gold eagle feathers, as well as the feathers and pelts of other migratory birds, in violation of federal law. As part of its investigation, an undercover agent from the U.S. Fish and Wildlife Service went to Wahchumwah’s house, pretending to be interested in buying feathers and pelts. Wahchumwah let him in his house, not knowing that the agent was secretly recording everything with a tiny video camera hidden in his clothes. The agent proceeded to capture two hours of video of Wachumwah’s home, including interactions between Wachumwah and his partner and children, and was even left alone by Wachumwah for periods of time, who did not suspect he was being recorded.

Charged with violating the Bald and Golden Eagle Protection Act and the Lacey Act, Wahchumwah moved to suppress the video evidence as an unreasonable search under the Fourth Amendment. The trial judge denied his motion, ruling that since Wahchumwah let the agent into his house, and the agent could testify to everything he saw in the house, Wahchumwah had no expectation of privacy. Wahchumwah appealed this decision to the Ninth Circuit, and we filed an amicus brief supporting him.

As we explain in our brief, a video camera can capture far more detail than a human eye. And unlike the human mind, a video camera doesn’t forget. After all, if an officer’s observations were sufficient, there would be no need for the video camera in the first place. Building on the Supreme Court’s landmark decision in United States v. Jones, which ruled the Fourth Amendment prohibited the warrantless use of GPS surveillance to monitor a person’s car on public roads for 28 days, we make two main arguments.

First, the initial appellate opinion in Jones issued by the D.C. Circuit (at the time called United States v. Maynard) explained that although a person may reveal discrete parts of his movements when driving in public, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.” While the Supreme Court affirmed the D.C. Circuit under a trespass theory instead, the D.C. Circuit’s astute point applies equally to video surveillance. Even if Wahchumwah permitted the undercover agent into his home, it would be extremely unlikely that Wahchumwah, or anyone else, would expect that his house guest was secretly video recording every little detail. And that meant even if Wahchumwah consented to the agent entering his house, he certainly did not consent to secret video surveillance.

Second, as Justice Sotomayor said in her concurring opinion in Jones, the fact that technology allows the government to cheaply and efficiently aggregate data in ways that were impractical in the past has the potential to “alter the relationship between citizen and government in a way that is inimical to democratic society.” While it is technically possible to follow someone for 28 days continuously, it is expensive and difficult. GPS technology now allows the government to track someone wherever they go and as long as they want, all from the comforts of the police station. A video camera does the same thing. Sure, its possible for someone to enter a house and write down everything they remembered seeing hours later when they leave the house. But a video camera is capable of aggregating an enormous amount of data that would be difficult for human senses to replicate. When a video camera secretly enters the home, it can capture things like the mail on your coffee table, the books on a shelf, or the pictures on your wall. And the whole point of a camera is to record and save for another day, allowing the government to not have to rely on the human mind’s tendency to forget. It can rewind again and again to examine every minute detail of the house.

In the past, such intensive video surveillance was reserved for serious, violent crimes. Today, its being used by Fish and Wildlife officers to investigate misdemeanors. A search warrant requirement strikes the right balance between the government’s need to investigate crime, and the public’s right to privacy — particularly in the home, the most private of all places. Hopefully, the Ninth Circuit will reverse the trial court, and eradicate this invasive warrantless surveillance once and for all.

Attached Documents

EFF Wahchumwah Amicus Brief

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