Criminal Law - Stored Communications Act - Third Circuit Allows Government to Acquire Cell Phone Tracking Data without Probable Cause

Harvard Law Review, April 2011 | Go to article overview

Criminal Law - Stored Communications Act - Third Circuit Allows Government to Acquire Cell Phone Tracking Data without Probable Cause


CRIMINAL LAW--STORED COMMUNICATIONS ACT--THIRD CIRCUIT ALLOWS GOVERNMENT TO ACQUIRE CELL PHONE TRACKING DATA WITHOUT PROBABLE CAUSE. --In re The Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010).

The Stored Communications Act (1) (SCA) articulates the standard the government must meet to obtain electronic communications records from phone companies. (2) In addition to the traditional option of obtaining a warrant by showing probable cause, (3) [section] 2703(d) of the SCA permits magistrate judges to grant court orders for acquisition of these records if the government meets a lower standard by "offer[ing] specific and articulable facts showing that there are reasonable grounds to believe" that the records "are relevant and material to an ongoing criminal investigation." (4) The government has often attempted, with varying degrees of success, to use [section] 2703(d) to obtain cell-site location information (CSLI), (5) which uses a cell phone's communication with cell towers to determine the approximate location of an individual over time. (6) Recently, in In re The Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, (7) the Third Circuit held that [section] 2703(d) applies to CSLI and that magistrates may grant court orders to obtain CSLI when the government meets [section] 2703(d)'s "specific and articulable facts" standard. (8) But the court also gave magistrates the power--"to be used sparingly"--to require the government to show probable cause and obtain a warrant for CSLI. (9) The Third Circuit failed to clarify exactly how often magistrates may require a warrant and did not explain what factors magistrates should balance in order to make this determination. As a result, In re Application provides little guidance to magistrates about how often and in what circumstances they may deny [section] 2703(d) orders.

As part of a 2007 criminal investigation targeting a suspected drug trafficker, the government applied for a [section] 2703(d) order requiring a cell phone service provider to turn over CSLI. (10) The government argued that this information would help determine the suspect's approximate whereabouts and might have provided information regarding the location of the suspect's drug supply, stash houses, and distribution networks. (11)

In an opinion joined by many of the magistrates in the Western District of Pennsylvania, (12) Magistrate Judge Lenihan denied the government's request for a [section] 2703(d) order. (13) She noted that the SCA applies only to wire or electronic communications, "which are expressly defined to exclude communications from a device 'which permits the tracking of the movement of a person or object.'" (14) Because triangulation of CSLI could enable the government to place a person within fifty feet of her physical location, Magistrate Judge Lenihan held that cell phones are "tracking device[s]." (15) Further, she stated that because [section] 2703(d) allows disclosure "only if" the government meets the "specific and articulable facts" standard--as opposed to "if" or "whenever" the government meets that standard--showing specific and articulable facts "is a necessary, but not necessarily sufficient, condition for issuance of an Order." (16) Finally, she noted that the constitutional avoidance doctrine counseled in favor of "a limiting interpretation that does not require the Courts repeatedly, on an ex parte ad hoc basis, to delineate the precise bounds of Fourth Amendment protection." (17) Because most Americans are unaware that cellular service providers retain CSLI, (18) there is a reasonable expectation of privacy in this data. Thus, probable cause and a warrant are required to retrieve CSLI. (19)

Judge McVerry, in the Western District of Pennsylvania, authored a short opinion affirming Magistrate Judge Lenihan's opinion. …

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