Last year I wrote an article that fore told of the July 30, 2013 Fifth Circuit Court of Appeals decision ruling constitutional warrantless applications for historical and real time cell phone location data. (http://www.phila-criminal-lawyer.com/Publications/005061214-Hark.pdf)
. The Fifth Circuit ruling, In re Application for Historical Cell Phone Data, 11-20884, is predicated upon the 2010 amendments to the Stored Communications Act, 18 U.S.C. § 2701 (the "SCA").In those amendments, Congress responded to updated government demand for advanced surveillance techniques of electronic and wire data previously unavailable to law enforcement. The SCA regulates the manner in which law enforcement can obtain data concerning private electronic and wire communications, the contents of these transmissions, and other historical information electronic communication service providers ("ECS") must now store.At issue in these cases is the statutory definition of the term Other information
. Congress defined this information as historical and real time "cell site location information" ("CSLI"); antenna towers used, the date, time and length of call, call handoffs, registrations, and connection records. This is the GPS triangulation evidences that pin-points historical and real time subscriber location within fifty feet of where a cellular phone call was made or received or smart phone internet usage triggered.The heart of the 2010 SCA amendments is § 2703(d), which authorizes government application for historical and current content and CLSI without a warrant or subpoena. This provision requires a court order for access to certain content and all CSLI. The magistrate shall issue the order "if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." The § 2703(d) application is filed ex parte
and under seal. It is for the magistrate to insure the government has met its limited burden of proof of "specific articulable facts that CSLI is relevant and material to an ongoing criminal investigation." Typically, judicial deference to the case agent's opinion as to materiality, without a hearing, occurs.In the July 2013 In re Application for Historical Cell Phone Data decision
, the magistrate originally denied the government’s ex parte
application, concluding the government’s request for “compelled warrantless search of cell phone historical data violates the Fourth Amendment.” The District Court affirmed this ruling concluding the statute violated the constitution and the required test was probable cause, not reasonable articulable facts.When confronted with this same issue in 2010, the Third Circuit became the first appellate court to review a magistrate's denial of a § 2703(d) application in In re Application, 620 F.3d 304 (2010). Prior thereto, numerous district courts addressed various issues regarding government access to prospective CSLI through § 2703(d) alone or in a hybrid application utilizing pen register and trace and trap statutes. Procedurally, the magistrate, joined by several colleagues, held that the probable cause standard applied and denied the government's application. The government appealed and the District Court affirmed. The Third Circuit reversed and remanded for a factual finding to determine if the government met its burden of proof under the lower standard. The court considered the data personal and private afforded is constitutional protection. The issue was whether the government met its burden of proof under the SCA.In its reversal of the District Court, the Third Circuit upheld congressional prerogative of allowing ex parte government access to historical and prospective CSLI, of which a privacy interests exist, based upon the mere representation of reasonable grounds to believe that cell or smart phone location is relevant and material to an ongoing criminal investigation. This standard is lower than probable cause and reasonable suspicion. Further, the court concluded that the magistrate must issue the order upon concluding the government met its burden of proof.The legal reasoning the Fifth Circuit took is significantly different from the Third Circuit. The Fifth Circuit concluded there is no judicial discretion once the government satisfies the statute’s factual predicate of ‘reasonable grounds of criminal activity’. The constitutionality of this factual predicate, however, the Fifth Circuit ruled, is sound because they conclude the CSLI information sought is a business record and not personal privacy data information. This is the marked departure from other appeals courts that have addressed this issue.Having held historical CSLS information is a business record, the court relies upon Supreme Court precedent to conclude the business records sought are not afforded constitutional privacy protections. Once the government proves it is entitled to the information sought (“through reasonable grounds” of criminal actively or relevance to a criminal investigation), courts must defer to Congressional authority which the SCA permits warrantless, ex parte
searches of ‘business records’ based upon the lower ‘articulable facts’ standard and not reasonable suspicion. Having done so, the Fifth Circuit allowed the application for the data.The business records conclusion is significant. Rather than evaluate the historical cell phone data as tracking information, the Fifth Circuit lowered the expectation of privacy associated with such data and declined to assert a constitutional benchmark for securing such records. This is a marked break from reality and an excuse to allow for congressional meddling in the privacy rights of the citizens of the United States. To categorize historical cell phone location information as data upon which billing and charges are based and not location data is an excuse to differ to Congress and allow for a lower standard of search criteria.