Mapping a Way Out: Protecting Cellphone Location Information without Starting over on the Fourth Amendment

By Leneis, Brad | American Criminal Law Review, Summer 2013 | Go to article overview

Mapping a Way Out: Protecting Cellphone Location Information without Starting over on the Fourth Amendment


Leneis, Brad, American Criminal Law Review


I. INTRODUCTION

In the last ten years, a new technology--the cellphone--has penetrated American society. (1) Many Americans no longer talk to one another over hard-wired landline phones--instead, they connect using mobile communications devices. (2) And they connect in a variety of ways: through email, instant messaging, text messaging, and online chat, to name a few. Smartphones with powerful computing abilities have now saturated the market as well. (3) As social media applications, or "apps," proliferate, these phones become all-purpose, real-time communications devices--compact glass windows into the lives of those around us. Small wonder we feel such an intense connection to them. (4)

This behavioral shift presents challenging new problems for courts and law enforcement alike. Many law enforcement agencies are concerned that the rapid migration to online communication will cause wiretaps, which have long been a critical investigative resource, to "go dark" because people may no longer rely exclusively (or even primarily) on telephones to communicate electronically in real-time. (5) But if the rise of online communication closes some investigatory doors, it opens another: collecting information about people's location and movements on a previously unthinkable scale. As discussed in Part II of this note, the cellphone network generates a vast amount of location information, and the precision of that information continually improves as the demand for mobile services rises. (6) Some of this information is generated when phone users place calls, send texts, or use apps; much more is generated when the phone automatically registers with nearby towers, which happens every few seconds when the phone is on. (7)

Naturally, law enforcement is very interested in this data because it can provide information about where suspected criminals have been (8) and where they are now. (9) But access to cellphone location data also raises privacy concerns precisely because it is so useful. (10) Part III of this Note assesses the state of the law concerning government access to cellphone location data. That access is governed by several aging federal statutes, discussed in Part III-A, which are backstopped by the Fourth Amendment's prohibition against unreasonable searches and seizures, discussed in Part III-B. Courts have generally held that the statutes provide more protection to real-time location information--that is, information about where a phone is now--than to stored information about where a phone has been." And the Fourth Amendment only provides protection for cellphone location information if users reasonably expect that information to remain private. (12)

When deciding whether such an expectation is reasonable, courts have wrestled with the implications of the Fourth Amendment's third-party doctrine. (13) Put simply, the third-party doctrine holds that a reasonable privacy expectation cannot attach to information voluntarily revealed to someone else. (14) Part IV examines two recent location information cases and argues that if the third-party doctrine is applied to all cellphone location information, no analytic barrier exists to prevent law enforcement from engaging the type of "dragnet" surveillance that should be forbidden by the Fourth Amendment. (15)

Part V then suggests a simple step that can alleviate this constitutional difficulty: excluding registration information--the location data that phones generate automatically--from the scope of the third-party doctrine's reach. This exclusion is consistent with the doctrine's foundational cases and with a reasonable cellphone user's understanding of how a phone generates location information. Further, the exclusion is straightforward to apply and would not unduly hamper criminal investigations. Part VI concludes.

II. CELLPHONE LOCATION INFORMATION: WHERE IT COMES FROM AND HOW MUCH THERE IS

Cellphones generate location information as a natural consequence of their operation. …

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