Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue
from the unfortunate-unanimity dept
The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.
This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.
[T]he district court held—and we affirm, holding that the government’s detection of Montai Riley’s whereabouts in this case, which included tracking Riley’s real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Riley’s GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennessee—but only after inquiring of the front-desk clerk did the government ascertain Riley’s specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Riley’s whereabouts than what Riley exposed to public view as he traveled “along public thoroughfares,” id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Riley’s motion to suppress evidence found upon Riley’s arrest.
While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.
The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or “pinging” of the latitude and longitude coordinates of Riley’s phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:
16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subject’s mobile device on the service provider’s network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.
The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone's owner.
No evidence of record indicates whether Riley’s phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Riley’s phone to cause it to send AT&T its GPS coordinates.
This should have been a warning flag. It's one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still…)
But it doesn't. The court goes on to say it doesn't matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That's why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.
In Skinner, we held that location data emitted by a “voluntarily procured” cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because “the defendant’s movements could have been observed by any member of the public,” ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.
But it then goes on to reach a conclusion which seems to contradict the evidence provided.
Using seven hours of GPS location data to determine an individual’s location (or a cell phone’s location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveled—but the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.
The lack of location info particularity should have worked against the government's argument. The court even admits in a footnote the government had no idea where exactly the suspect was located -- only a general idea that he was likely in a publicly-accessible building.
When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precision—even if the Airport Inn were only one story tall—to reveal which room, if any, the phone was in at the time of each ping.
So, it could be argued the government did track the suspect's "movements within… a hotel room," which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel's accessibility and the coarse location info as an argument against potential Fourth Amendment violations.
That Riley was arrested in a motel is of no moment, for the government learned no more about Riley’s whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby “along public thoroughfares,” Skinner, 690 F.3d at 774—even if Riley meant to keep his location a secret, one cannot expect privacy in one’s public movements.
Certainly the arrest was "no moment," but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there's ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, 6th circuit, csli, location info, third party doctrine
Reader Comments
Subscribe: RSS
View by: Time | Thread
Courts...
The judicial systems needs an overall. It is so completely outdated that it is almost irrelevant.
How can a judge (or panel of judges) who do not and cannot understand the technology being used even HOPE to be able to pass judgement on anything involving that technology.
They can't... and yet... they do.
[ link to this | view in chronology ]
Re: Courts...
A search and seizure is burglary, possibly breaking & entry as well, without the warrant. Using a telescope to spy into someone's bedroom window violates Peeping Tom laws, unless the spy has a warrant. Using cellphone tracking hardware would be an interception of electronic communications without that warrant.
But when a court declares there is no warrant requirement, what they are really declaring is that it is completely legal for people to do whatever they just declared to not need a warrant.
In those circuits, tracking someone's cellphone ISN'T interception of communications or a violation of the CFAA -- it cannot be, since the law enforcement exceptions to those laws ALL require a warrant!
[ link to this | view in chronology ]
Even if the suspect was apprehended outside of their residence but in close proximity to it, one could argue that tracking their cell phone while in their residence led law enforcement to their residence.
I suppose one could forego the convenience of carrying a cell phone to avoid the issue altogether (or do what I do -- leave it on airplane mode until I want to make a call. I don't really want to talk with anyone anyhow.).
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Its all going down as planned.
A government thoroughly running amok on a power trip because we ask them to regulate everything so that a citizens is responsible for nothing.
Constant calls for democracy as if the ignorant crowds will not oppress others as fast as a tyrant.
Constant changes to government and law as though we know what we are doing.
Go and read the FULL text of the declaration of Independence. EVERY thing our ancestors died fighting against has returned to us in full force and we continue to welcome even more tyranny in vain attempts to regain some semblance of liberty.
[ link to this | view in chronology ]
Re: Its all going down as planned.
Actually, that's not where the third-party doctrine comes from.
A business would have a full Fourth Amendment privacy interest in its own data, about the business itself, just as a private individual would.
Where the Third Party Doctrine comes from is that the business does not have a Fourth Amendment privacy interest in someone else's data.
If the data were still in the hands of the "someone else" (the first party), then the government (the second party) could not search or seize it without a warrant.
But as soon as the first party hands it over to a business (the third party), or indeed to another private individual, the first party can no longer claim that privacy interest - because the first party no longer controls access to the data.
The third party can also not claim the privacy interest, because revealing the data doesn't violate the third party's privacy; it only violates the first party's privacy.
So the second party can demand access to the data without need of a warrant, because the first party gave up privacy in the data when the data was handed over to the third party, and the third party does not have a privacy interest in the data.
This is not a pretty result, and I'm not happy about the consequences, but I find it hard to find a hole in the logic.
[ link to this | view in chronology ]
Re: Re: Its all going down as planned.
Let's begin with the first-party not exactly choosing to disclose some of the information. That's a debatable point, but it makes the disclosure less a voluntary disclosure and more a necessary process that's been reluctantly agreed on.
Next, the fact that this data was shared on the assumption that it wouldn't be disclosed to other parties. The reason I don't turn off my phone most of the time is that I expect my position to only be known to the communication carrier as a requirement to access the carrier's network. I don't expect even employees of the company to go dig through my location data.
Third, there are other kind of data that are secure as a normal part of doing business and can hardly be accessed (at least not without a warrant, and sometimes even not then). Medical files, financial records, exchanges with your lawyers, journalistic sources and I probably miss others. Those are all information that you share with a third-party, but are adding to still be confidential.
The third-party doctrine is a pure invention made up by lazy LEOs who don't want to bother with the time and minimum justification required to get a warrant. It's not based on logic but on an argument of authority, which is bad sophistry.
[ link to this | view in chronology ]
Re: Re: Re: Its all going down as planned.
I only covered here the basic flaws of the general logic behind the "third-party" loophole.
This case also shows worse abuses of that already bad legal loophole, such as requesting information in real time, meaning it doesn't even exist at the time of the request.
Or the uncertainty behind who actually generated the data.
[ link to this | view in chronology ]
it seems to me he should have ditched his cell phone.
If not its like running down the street yelling "I'M NOT HERE!"
[ link to this | view in chronology ]
It's whitewash
The standard should be that if the records aren't public (even if they are held by a third party), then a warrant should be required. It doesn't matter if it's stored email or cell phone location data.
Business records, in the usual sense, would be consumer PII and other information which is directly relevant to interacting with a customer, not cell data.
[ link to this | view in chronology ]