Fourth Amendment - Warrantless Searches - Fifth Circuit Upholds Stored Communications Act's Non-Warrant Requirement for Cell-Site Data as Not per Se Unconstitutional

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FOURTH AMENDMENT--WARRANTLESS SEARCHES--FIFTH CIRCUIT UP HOLDS STORED COMMUNICATIONS ACT'S NON-WARRANT REQUIREMENT FOR CELL-SITE DATA AS NOT PER SE UNCONSTITUTIONAL.--In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013).

The Fourth Amendment is traditionally understood to balance privacy and security. (1) But changes in technology (2) and the goals and methods of police work (3) have threatened to unsettle the meaning of the Fourth Amendment's protections. (4) The constitutional status of cell phones and the data they contain and produce is particularly contested. (5) Recently, in In re Application of the United States for Historical Cell Site Data, (6) the Fifth Circuit added an important new voice to this debate, holding that the Stored Communications Act (7) (SCA) provision allowing the government to demand cell-site location data (8) from service providers did not authorize a "search," and therefore that its lack of a warrant requirement was not per se unconstitutional. In reaching its holding, the Fifth Circuit assumed that its positive analysis--that cell phone users do not in fact expect their cell-site location data to be private--was dispositive of whether the Fourth Amendment's probable cause requirement ought to apply. It unwisely declined to apply a normative analysis asking whether location data should be protected by the Fourth Amendment. Both a recent Supreme Court case and relevant legislation could have signaled to the court that location data may warrant Fourth Amendment protections. Courts that review similar questions--including the Supreme Court (9)--should consider asking not only whether cell phone users do in fact expect privacy in their location data, but also whether they should.

In 2010, the United States submitted applications in three criminal investigations to Magistrate Judge Smith of the Southern District of Texas seeking to compel records from cell phone service providers. (10) The government requested historical cell-site location data for a two-month period detailing the location of certain cell phones to varying degrees of precision. (11) The United States' applications were filed under the SCA, which establishes that a court shall issue an order compelling disclosure of communications records if the government provides "specific and articulable facts" showing a reasonable belief that the records are relevant to an ongoing criminal investigation. (12)

Magistrate Judge Smith denied the United States' applications, finding that warrantless disclosure of cell-site data violates the Fourth Amendment based on three independent doctrines. (13) First, he held that "refinements in location-based technology" that allowed the government to trace suspects into their own homes could invade the privacy of the home in violation of the Fourth Amendment. (14) Second, he held that historical cell-site data was protected under the "prolonged surveillance doctrine" set forth by the D.C. Circuit in United States v. Maynard, (15) as that data can paint an "intimate picture" of a suspect's personal life. (16) Finally, he rejected the government's argument that the Fourth Amendment was inapplicable because cell phone users had disclosed voluntarily the data in question to service providers. Magistrate Judge Smith held that location information had not been "voluntarily conveyed" by the phone user to the service provider. (17) Judge Hughes issued a brief order upholding the Magistrate Judge's opinion. (18)

The Fifth Circuit vacated and remanded with instructions to grant the government's applications. (19) In an opinion by Judge Clement, (20) the court held that orders authorizing subpoenas for historical cell-site data under the SCA are not per se unconstitutional. (21) The court first considered whether it could avoid the constitutional issue. (22) The ACLU, an amicus curiae, had argued that the SCA could be read to afford a magistrate judge discretion to require that the government obtain a warrant, even where the government had met the "specific and articulable facts" standard under 18 U. …