By Clark, M. Wesley
The FBI Law Enforcement Bulletin , Vol. 75, No. 5
Rapid changes in technology often present law enforcement with questions as to how these advances fit within an already-existing legal framework of laws and cases. The widespread availability of the cell phone is no different. Law enforcement has been presented with an investigative instrument capable of augmenting tools used to assist physical surveillance such as traditional tracking equipment. (1) Yet, the parameters for the lawful use of this technology to assist law enforcement are not yet fully delineated. The traditional statutory framework governing electronic surveillance does not provide law enforcement with clear-cut guidance. This article covers the use of the cell phone as a surveillance aid and the extent to which current electronic surveillance statutory provisions address this use. In addition, the recent judicial analysis of this issue also will be discussed.
Traditional Tracking Analysis
Traditional law enforcement methods of tracking, whether through the use of a tracking device on a vehicle or other conveyance or placing a device inside a container, fit within the analysis provided by the U.S. Supreme Court in United States v. Knotts (2) and United States v. Karo. (3) These cases held that so long as the conveyance or thing to be monitored is out and about on the public thoroughfares, (4) open fields, or even on private property, (5) all instances where the information revealed by the target could be observed by visual surveillance engaged in by third parties, no showing of evidence--let alone probable cause--is required. (6) This analysis holds true today so long as the tracking equipment belongs to the government; it does not resolve the issue when third-party assistance from the service provider is required.
Cell phone companies with mounting concerns about liability typically will not furnish cell phone location information to law enforcement absent a court order. The question of the moment surrounds the quantum of evidence that the government must articulate to a court before such an order for prospective or real-time data (critical for tracking the cell phone) will be issued. (7)
Within the Scope of an Existing Court Order
In United States v. Forest, (8) the DEA had a court order to intercept wire communications pursuant to "Title III" (9) that also directed the service provider to "disclose to the government all subscriber information, toll records, and other information relevant to the government's investigation." (10) As an aid to the establishment of visual contact with the subject, DEA personnel dialed the target's cell phone (without letting it ring) several times in the course of the day and obtained the cell phone location through the cell site information given by the service provider. (11)
The defendant argued that in so doing, DEA personnel violated his Fourth Amendment rights. The threshold question was whether securing the cell site location information constituted either a search or a seizure within the meaning of the Fourth Amendment. The Federal Court of Appeals for the Sixth Circuit concluded that because the data "was used to track [the target's] movements only on public highways," Knotts was controlling and that there was "no legitimate expectation of privacy in the cell site data because DEA agents could have obtained the same information by following [the target's] car." (12)
Absent an Existing Court Order
In most location surveillance scenarios, law enforcement probably will not be fortunate enough to have a comprehensive court order in place as in Forest, thus squarely presenting the need for a standalone order. The type of order and quantum of information needed to obtain this information from the service provider are not yet clear. In several instances, federal law enforcement has relied on provisions within Title II of the Electronic Communications Privacy Act (13) (ECPA), primarily section 2703(d) of Title 18 of the U. …