Texas Court Says State's Constitution Protects Cell Site Location Info

from the guess-Texas-won't-be-seceding-from-Fourth-Amendment dept

The Texas Criminal Court of Appeals has looked at the Supreme Court's Carpenter decision and decided it applies to cell site location info, even when that information was obtained by law enforcement years before the Supreme Court came to this conclusion. (via Courthouse News)

The location records obtained from AT&T without a warrant destroyed the accused murderer's alibi. From the decision [PDF]:

Christopher James Holder, Appellant, was charged with capital murder. During the course of the investigation, police accessed 23 days of his CSLI to corroborate his alibi that he was out of town when the victim was killed. But Appellant lied. The records showed that he was near the victim’s house at the time of the murder.

Holder filed motions to suppress the CSLI, arguing the records were obtained without reaching the required "specific and articulable" suspicion standard set by the Stored Communications Act. He also argued it violated the Texas Constitution's version of the Fourth Amendment, which reads:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Here's where the investigator went wrong. There's a defining line between "reasonable suspicion" and "probable cause." The officer who approached AT&T apparently felt the terms were interchangeable and he could use whichever of those to obtain CSLI records.

The morning of November 12, police obtained a court order directing AT&T Wireless (AT&T) to disclose call log and CSLI records showing the location of Appellant’s cell phone between October 20 and November 12, but an AT&T representative declined to produce them because, according to them, the court order had to be based on probable cause. After changing the phrase “reasonable suspicion” to “probable cause,” the petitioning officer took the new order to a judge, who signed it. According to the officer, “[i]t was simpler for [him] to just change the wording[,] have it re-signed[,] and bother the judge one more time . . . .”

The footnote attached to this paragraph notes the State admitted during oral arguments the request did not have "sufficient facts to establish probable cause." Cutting corners isn't acceptable when rights are on the line, no matter how heinous the crime.

The court says suppression is not the appropriate remedy for "non-Constitutional" violations of the Stored Communications Act. But it is likely the appropriate remedy when the Texas Constitution and the Supreme Court's Carpenter decision are taken into consideration. The court undoes its own precedent to align the Texas Constitution with the US Constitution.

The question we must answer now is whether the Supreme Court’s analysis in Carpenter is persuasive, or whether we should take the position that Texas citizens have less privacy rights under the Texas Constitution than the United States Constitution based on a Supreme Court doctrine that even it has declined to apply to CSLI. We think that it makes more sense to adopt the Supreme Court’s reasoning in Carpenter and to no longer apply the third-party doctrine to CSLI records under Article I, Section 9.

Just because this court hasn't examined a case directly on point with the Carpenter decision doesn't mean Texans should have fewer rights just because they live in Texas.

The Supreme Court exhaustively analyzed the privacy issues implicated by CSLI, which we did not do in our original Hankston opinion, and we share the Court’s grave concerns about the Government’s ability to use a continuous, surreptitious, precise, and permeating form of surveillance to continually track its citizens’ every move retrospectively for up to five years. The same privacy concerns are implicated regardless of whether CSLI is accessed under the Fourth Amendment or Article I, Section 9. Further, we have reviewed the constitutional debates in Texas, which we did not previously do, and they show no intention on the part of our framers for Texas citizens to have less protection from unreasonable searches and seizure under the Texas Constitution than the United States Constitution.

Under the Texas Constitution, the search was unreasonable.

Generally, an Article I, Section 9 search is unreasonable absent probable cause, exigent circumstances, or some other recognized law-enforcement need. Here, because the State was acting in its traditional crime-fighting role, and it did not allege exigent circumstances or some other recognized law-enforcement need, the search had to be supported by probable cause to be reasonable. However, the State concedes that the petition does not support a probable cause finding. We agree.

This doesn't automatically lead to suppression of the CSLI records. But it does overturn two previous decisions by the lower courts. It heads back to the county's court of appeals for the judge to decide whether the illegally-obtained records gave the prosecution an unearned edge. Whatever the court decides, the rule is in place: the third-party doctrine does not apply to historical CSLI. Get a warrant.

Filed Under: 4th amendment, carpenter, cell site location info, christopher holder, csli, texas
Companies: at&t

Federal Court: Eight Months Of Utility Pole Camera Surveillance Is A Fourth Amendment Violation

from the warrants-are-the-wave-of-the-future dept

The Supreme Court's Carpenter decision continues to add warrant requirements to surveillance activities law enforcement routinely engages in with almost zero paperwork whatsoever. The Carpenter case dealt with the government's collection of historical cell site location info from third party telcos, but its influence has spread much farther than that.

The decision shook the foundation of the Third Party Doctrine, suggesting a new "reasonable expectation of privacy" standard that threatens warrantless access to a number of third party records. It also suggested long-term surveillance of citizens shouldn't be a warrant-free activity, even if much of what's surveilled occurs out in the open.

To date, courts have applied the Carpenter decision to cover things like car crash data from a vehicle's black box and GPS data pulled from third party services. In this case, via FourthAmendment.com, a Massachusetts federal court says the Carpenter decision covers long-term surveillance of someone's home.

The evidence being challenged in this case is actually unknown. But the defendants raising the challenge assume the government will be introducing evidence derived from video recordings of the front door and driveway of their home, captured by a camera mounted to a nearby utility pole. Law enforcement -- without a warrant or stated probable cause -- surveilled the home for over eight months.

As the court notes in its decision [PDF], surveillance of publicly-viewable areas generally isn't a Fourth Amendment issue.

Casual observations of a person's forays in and out of her home do not usually fall within the Fourth Amendment's protections. Here, the defendants ask the Court to consider whether a precise video log of the whole of their travels in and out of their home over the course of eight months, created by a camera affixed to a utility pole that could also read the license plates of their guests, raises Fourth Amendment concerns.

The court says the test for applying the Fourth Amendment to government surveillance efforts comes down to a "reasonable" expectation of privacy. Here, the court finds the defendants' privacy expectations are both subjectively and objectively reasonable.

The Court ALLOWS Moore-Bush and Moore's motion to suppress because they have exhibited an actual, subjective expectation of privacy that society recognizes as objectively reasonable. See Morel, 922 F.3d at 8. First, the Court infers from their choice of neighborhood that they subjectively expected that their and their houseguests' comings and goings over the course of eight months would not be surreptitiously surveilled. See Moore Mot. 7. Second, the Court rules that the Pole Cameras collected information that permitted the Government to peer into Moore-Bush and Moore's private lives and constitutionally protected associations in an objectively unreasonable manner. See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).

The government, of course, disagreed. It argued the defendants had no privacy interest in the front of their house, considering it was viewable by anyone passing by it. The court says if that were the extent of the privacy interest asserted by the defendants, the government would be correct.

Yet that is not the narrower privacy interest that Moore-Bush and Moore assert here. Instead, Moore-Bush and Moore claim that they expected privacy in the whole of their movements over the course of eight months from continuous video recording with magnification and logging features in the front of their house. The Court infers from Moore-Bush and Moore's choice of neighborhood and home within it that they did not subjectively expect to be surreptitiously surveilled with meticulous precision each and every time they or a visitor came or went from their home.

The government may have prevailed if it weren't for the Carpenter decision, though. The issue isn't a camera pointed at a publicly-viewable area. The problem is what that camera collected over the course of eight months.

In Bucci, the First Circuit reasoned that the "legal principle" that "[a]n individual does not have an expectation of privacy in items or places he exposes to the public" disposed of the matter… If that principle remains an accurate depiction of the law, Moore and Moore-Bush lack an objectively reasonable expectation of privacy in the activities just outside their home, regardless of the camera's unique capabilities.

The Court reads Carpenter, however, to cabin -- if not repudiate -- that principle. There, the Supreme Court stated that: "A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, 'what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'" [...] What's more, the Supreme Court recognized that long-term tracking of a person's movements "provides an intimate window into a person's life, revealing not only his particular movements, but through them his 'familial, political, professional, religious, and sexual associations.'"

The government argued the Carpenter decision was "narrow," applying only to cell-site location info. The court disagrees, saying the reasoning behind the Supreme Court's decision -- that people do have some reasonable expectations of privacy in public areas -- is the driving force here, not the method of surveillance.

Additionally, long-term surveillance tends to do damage to other rights as well. Tracking a person's movements over weeks and months allows the government to surveil a wealth of activities protected by the First Amendment. In addition, it allows the government to observe dozens of activities it has no business observing.

What's more, people use their homes for all sorts of liaisons. For example, the Government has no business knowing that someone other than the occupant's spouse visited the home late at night when the spouse was away and left early in the morning… Nor does the Government have any business tracking a homeowners' hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.

The court wraps up its decision by pointing out it is not declaring all surveillance camera use a search under the Fourth Amendment. Instead, it's saying that this set of circumstances makes it a search that interferes with the defendants' reasonable expectation of privacy. The camera setup used here could focus on multiple areas, zoom in close enough to read license plate numbers, and -- perhaps most importantly -- create a searchable set of recordings the government could browse at its leisure and use to reconstruct the lives of the home's occupants over the court of several months. That exceeds what the court -- and the defendants -- find reasonable. Under Carpenter's standard, this type of surveillance can no longer be executed without a warrant.

Filed Under: 3rd party doctrine, 4th amendment, carpenter, daphne moore, nia moore-bush, reasonable expectation of privacy, surveillance, utility pole

Federal Court Says Warrants Are Needed To Grab GPS Data From Third-Party Tracking Services

from the seems-like-an-obvious-extension-of-Carpenter dept

In 2012, the Supreme Court decided that GPS tracking devices require warrants. Notably, this wasn't because the GPS data was deserving of Fourth Amendment protections but because officers had to trespass on private property (a car parked in a driveway) to attach the device.

That left law enforcement with a lot a gray area in which to operate. Since there was no distinct finding that GPS data was protected, it could theoretically be harvested from third-party devices without a warrant. The Supreme Court's decision in the Carpenter case, however, appeared to extend protections to the records themselves. It declared the acquisition of cell site location info requires the use of the warrant, extending Fourth Amendment protections to third party records of people's movements. It could be argued this decision covers GPS data pulled from third party services, since it's basically the same thing: gathering records of a person's movements.

In a recent federal case [PDF], both of these Supreme Court decisions are in play. It appears law enforcement thought it had found a way to route around the Jones decision. Investigating a robbery, detectives approached the dealership that had sold the vehicle spotted at the scene of the crime. The dealership had installed a tracking device to make the car easier to find in case of a repo. This was the data detectives obtained without a warrant.

On March 29, 2017, Hinsdale detectives issued an alert “on multiple databases” seeking information about the Lexus. Id. at 3. On April 4, 2017, a Headers employee told one of the detectives that the Lexus was equipped with a GPS tracking device serviced by Air Assault Asset Track GPS Systems. The Headers employee gave the detective her login credentials for Air Assault’s website and authorized him to access “all the GPS records associated with the Devinn Adams/Lexus RX account.” The GPS records included historical data tracking the Lexus’s “movement and global position.”

Without first obtaining a warrant, the detective downloaded a spreadsheet containing GPS data for the period from March 1, 2017 through April 4, 2017. The spreadsheet sets forth time-stamped entries giving the Lexus’s approximate street address (usually at the block level, such as “5701-5799 S Campbell Ave, Chicago, IL, 60629”) each time it was turned on, approximately every five minutes while it was being driven, and each time it was parked. According to the detective, “[g]reater detail” beyond those approximate street addresses “c[ould] be extracted from the map points” using “the software program that manages the GPS data,” which allowed the detective to “narrow[]” each recorded location “to specific latitude and longitude way points.”

Tobias Diggs, the alleged driver, moved to suppress the evidence, stating that both the Jones and Carpenter decisions prohibited this information being obtained without a warrant. The government argued that neither decision mattered.

The government responds that acquiring the data was not a Fourth Amendment search because: (1) unlike in Jones, the police made no physical intrusion on the Lexus, Doc. 55 at 10-12; and (2) under the third-party doctrine, Diggs lacked a reasonable expectation of privacy in the data because he voluntarily provided it to the third party (Headers) from which the police obtained it, id. at 5-10.

Wrong, says the court. This is exactly what's covered by these two decisions.

The GPS data at issue here fits squarely within the scope of the reasonable expectation of privacy identified by the Jones concurrences and reaffirmed in Carpenter. The GPS data provide “a precise, comprehensive record of [Diggs’s] public movements” over the course of a month.

It goes on to point out the data collected here is pretty much indistinguishable from the data at the heart of the Carpenter decision.

Applying the third-party doctrine to the GPS data here would require essentially the same extension of the doctrine that the Court rejected in Carpenter. Carpenter understood CSLI to present “many of the qualities of the GPS monitoring … considered in Jones”—both are “detailed, encyclopedic, and effortlessly compiled”; both “provide[] an intimate window into a person’s life”; and, in the context of historical information, both provide a “tracking capacity [that] runs against everyone” without any need for the police to “know in advance whether they want to follow a particular individual, or when.” Indeed, at the time of the search in Carpenter, CSLI was still “less precise than GPS information.” Accordingly, Carpenter compels the conclusion that, given the privacy concerns implicated by the “detailed and comprehensive record of [Diggs’s] movements” captured by the Lexus’s GPS tracker, “the fact that the [police] obtained the information from a third party does not overcome [Diggs’s] claim to Fourth Amendment protection.”

The government also tried to get the good faith exception applied. Given that this search occurred prior to the Carpenter decision, the government says the detectives had no reason to believe a warrant was needed. The court disagrees. The government can point to no prior cases specifically authorizing this sort of warrantless search. But more importantly, it reiterates that the Carpenter decision can -- and should -- be applied retroactively.

The Supreme Court could have described what it was doing in Carpenter, not as declining to extend the third-party doctrine to a context not addressed in Smith and Miller, but as partially scaling back the once-categorical doctrine to account for “the seismic shifts in digital technology” that gave rise to widespread, long-term location tracking. 138 S. Ct. at 2219. Had it done so, the Davis good-faith exception might very well have applied here. [...] But instead, the Court said that the third-party doctrine was never broad enough to encompass technology-enabled long-term location tracking in the first place.

[...]

Carpenter thus teaches that general statements of the third-party doctrine uttered in pre-Carpenter decisions not only do not cover CSLI, but never did. And as noted above, what Carpenter said about the third-party doctrine as to CSLI applies with full force to GPS data. It follows that for the Davis good-faith exception to apply to the GPS search here, the government needs more than general statements of the third-party doctrine in a binding appellate decision issued before the search; rather, the government must point to binding appellate precedent applying the doctrine to long-term historical GPS data or its equivalent.

The government loses the GPS data evidence. And it may lose even more than that if any of its other evidence was derived from this unlawful acquisition of data, which possibly includes DNA samples and social media records.

Not every court has read the Carpenter decision as retroactive, but this court's opinion makes really good points about why it should be read that way in all instances. The Third Party Doctrine was altered significantly by this decision, even if it only dealt with cell site location info. It has changed the contours of what can be considered a "reasonable" search of records held by third parties. Location info is only the beginning. The court's extension of this protection to third-party GPS records sends a message to law enforcement that the stuff they did for the last 40 years (thanks to Smith v. Maryland) may no longer survive a suppression challenge.

Filed Under: 4th amendment, carpenter, gps, jones, supreme court, third party doctrine, warrants

Appeals Court: City-Owned Utility Pulling Electric Use Info Every 15 Minutes Is A Search

from the but-an-acceptable-search-apparently dept

An oddball, but interesting, decision [PDF] flowing from the Supreme Court's Carpenter ruling has been issued by the Seventh Circuit Court of Appeals. While the Carpenter decision centered on the long term collection of historic cell site location information, the ruling could be applied to a number of situations where records created by citizens are stored and housed by other parties and accessible without a warrant.

This case deals with smart meters, issued by the government (via the public electric utility) to track electric use in citizens' homes. With the old meters, readings were performed by utility employees every few weeks. The new smart meters send back info on electric use every fifteen minutes. This frequency was chosen by the City of Naperville government. It could have gone with something less intrusive, but it chose this method instead.

The city was sued by citizens opposed to being snooped on by the new smart meters. The plaintiffs argued the frequent readings allowed to government to make a great deal of inferences about activities inside citizens' homes, based on the rolling delivery of energy use amounts. The district court tossed the case. So does the Appeals Court, but only after making some interesting findings. (via Orin Kerr/Volokh Conspiracy)

First, the court rules that the government's use of smart meters to retrieve information about electric usage is actually a search under the Fourth Amendment. To do that, it looks to the Supreme Court's Kyllo decision, which dealt with the warrantless deployment of thermal imaging scanners by law enforcement. That decision found deployment to be a search, even if officers never physically entered the residences being scanned. Enough could be inferred about inside activity from the thermal images to be considered a search under the Fourth Amendment. The Appeals Court says the same rationale applies here.

The technology-assisted data collection that Smart Meter Awareness alleges here is at least as rich as that found to be a search in Kyllo. Indeed, the group alleges that energy-consumption data collected at fifteen-minute intervals reveals when people are home, when people are away, when people sleep and eat, what types of appliances are in the home, and when those appliances are used. By contrast, Kyllo merely revealed that something in the home was emitting a large amount of energy (in the form of heat).

This search, performed by smart meters, has more privacy implications than the rough thermal imaging in Kyllo.

What’s more, the data collected by Naperville can be used to draw the exact inference that troubled the Court in Kyllo. There, law enforcement “concluded that [a home’s occupant] was using halide lights to grow marijuana in his house” based on an excessive amount of energy coming from the home. Id. at 30. Here too, law enforcement could conclude that an occupant was using grow lights from incredibly high meter readings, particularly if the power was drawn at odd hours. In fact, the data collected by Naperville could prove even more intrusive. By analyzing the energy consumption of a home over time in concert with appliance load profiles for grow lights, Naperville law enforcement could “conclude” that a resident was using the lights with more confidence than those using thermal imaging could ever hope for. With little effort, they could conduct this analysis for many homes over many years.

The court notes this isn't a Third Party Doctrine case, unlike the Supreme Court's Carpenter decision. This argument, raised by the city in its defense of its info collection, is unavailing. There is no third party. This dismantles the city's argument the data collection was somehow a "voluntary" exchange. The information flows from citizens' houses directly to the government. There's nothing "voluntary" about electric service provided by the government, and that's where the Carpenter decision comes in.

The third-party doctrine rests on “the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.”But in this context, a choice to share data imposed by fiat is no choice at all. If a person does not—in any meaningful sense—“voluntarily ‘assume the risk’ of turning over a comprehensive dossier of physical movements” by choosing to use a cell phone, Carpenter, 138 S. Ct. at 2220 (quoting Smith, 442 U.S. at 745), it also goes that a home occupant does not assume the risk of near constant monitoring by choosing to have electricity in her home. We therefore doubt that Smith and Miller extend this far.

Ultimately, the court sides with government. Unreasonable searches need warrants. They're permission slips for things we don't want our government doing without permission from an impartial judge and without laying out the justification for the search. In this case, the flow of data to the government (in exchange for the flow of electricity from the government) is a search, but it's a "reasonable" search. The appeals court says that the government's interest in modernizing the grid and energy deployment is worthwhile and done "without prosecutorial intent." Law enforcement does not have constant access to this info. Only the utility does. Presumably, additional paperwork would be necessary if law enforcement does want access, but the court doesn't see anything on the record that suggests public utility shoulder surfing by police officers.

Smart meters allow utilities to reduce costs, provide cheaper power to consumers, encourage energy efficiency, and increase grid stability. We hold that these interests render the city’s search reasonable, where the search is unrelated to law enforcement, is minimally invasive, and presents little risk of corollary criminal consequences.

Somewhat strangely, the court decides that the more smart meters the government rolls out, the less of a Fourth Amendment issue it becomes.

Under Kyllo, however, even an extremely invasive technology can evade the warrant requirement if it is “in general public use.” While more and more energy providers are encouraging (or in this case forcing) their customers to permit the installation of smart meters, the meters are not yet so pervasive that they fall into this class. To be sure, the exact contours of this qualifier are unclear—since Kyllo, the Supreme Court has offered little guidance. But Kyllo itself suggests that the use of technology is not a search when the technology is both widely available and routinely used by the general public.

In the court's own words, now that airplanes are a routine part of daily life, stuff viewable from overheard has a diminished privacy interest. Apparently, the same thing applies to the continuous flow of electric usage data to government utilities. Once smart meters are no longer a niche item, Americans will just have to get used to the government drawing inferences from the multiple data points it gathers daily.

This seems at odds with the Carpenter decision (which partially stems from the Supreme Court's ruling on cellphone searches). The more pervasive the tech is, the more privacy implications it raises. Once cellphones became ubiquitous, the government could no longer be allowed to treat them as tracking devices loaded with personal information that could be accessed without a warrant.

The tech in this case may be owned by the government, but the same thought process should apply. Turning peoples' homes into a steady stream of data points via the rollout of smart meters should weigh against the government's easy access, rather than be treated as a supporting argument for it. But that's the way the Supreme Court precedent sits right now, which makes for some very inconsistent Fourth Amendment applications.

Filed Under: 4th amendment, 7th circuit, carpenter, electric utility, naperville, smart meters

Post-Carpenter Ruling Says Call Records Aren't Content Or Cell Site Location Info; Thus, No 4th Amendment Protection

from the narrow-ruling-means-narrow-applications dept

Judicial citations and applications of the recent Supreme Court decision in the Carpenter case continue to roll in. The narrow holding by the Supreme Court was that acquisition of cell site location info (CSLI) now requires a warrant, seeing as it can be used to effectively "track" someone over a period of days or months. Historical CSLI -- especially large amounts of it -- is far more revealing than many other records covered by the Third Party Doctrine. An "equilibrium shift" was needed and the court applied it.

The shift is trickling down to lower courts, leading to some examinations of the Carpenter ruling in cases that don't appear to call for it. The Supreme Court of California, ruling [PDF] on a case that originated 15 years ago, takes a brief moment to weigh the Carpenter ruling against the specifics of this appeal. (via FourthAmendment.com)

At stake here -- one of the several challenges raised by the defendant -- are phone records gathered with an SCA court order. Phone records were left undisturbed by the Carpenter ruling, but here's the court's brief examination of the issue.

The prosecution presented telephone records and testimony showing telephone calls among the various participants during relevant times. It obtained the telephone records pursuant to a court order under 18 United States Code section 2703, part of the federal Stored Communications Act. (See Carpenter v. United States (June 22, 2018, No. 16-402) 585 U.S. __. __ [2018 WL 3073916 p. *4].) Defendant moved to suppress the evidence, partly on the ground that obtaining the records without a search warrant violated his rights under the Fourth Amendment to the United States Constitution.

Unsurprisingly, the trial court -- ruling years before the Supreme Court's decision -- found this to be constitutional under the Smith v. Maryland decision, which solidified the Third Party Doctrine framework. The court here notes the records now exempted from the Third Party Doctrine include records obtainable under the Stored Communications Act. Still, it finds no violation -- not because the Carpenter ruling wasn't in place yet, but because call records aren't communications.

The United States Supreme Court has now held that a search warrant is needed to obtain at least some types of information governed by the Stored Communications Act. (Carpenter v. United States, supra, 2018 WL 3073916.) The court stressed that its holding is “narrow,” and that it did “not disturb the application of” cases such as Smith v. Maryland, supra, 442 U.S. 735. (Carpenter, at p. *13.) It is not clear whether Carpenter’s holding would apply here. But we need not decide the question. Any error was harmless beyond a reasonable doubt. The evidence merely showed that some of the alleged conspirators communicated by telephone at certain times; the content of the communications was not revealed. Although relevant, the evidence was unimportant in light of the trial as a whole.

Even if this were being challenged post-Carpenter and even if the originating events happened after the Supreme Court's decision, the outcome would still be the same. The Supreme Court issued no opinion on the privacy implications of phone call metadata and took care to leave the Third Party Doctrine standing, minus the small part it trimmed off for historical CSLI. Content has always required warrants. There's a whole set of wiretap laws and litigation pertaining to it. Dialed numbers haven't been given Constitutional protection in over 50 years. But it is good to know courts are at least seeking to apply the ruling in cases where there's no obvious application, rather than ignoring the implications of the ruling completely.

Filed Under: 4th amendment, call records, carpenter, location info, scli, warrants

Court Compares Car Crash Data To CSLI, Cellphone Contents; Tells Cops Best Bet Is To Always Get A Warrant

from the I'll-show-you-mine-if-you-show-me-your-[warrant] dept

The Supreme Court's ruling in the Carpenter case came as something of a surprise. The nation's courts seemed unwilling to start paring back the Third Party Doctrine, but the expansion of people's digital footprints following the widespread adoption of smartphones proved to be too big to ignore. The ruling was narrow -- finding only that the acquisition of historical cell site location info (CSLI) was a search under the Fourth Amendment -- but it possibly contains broader applications.

The way it stands now, law enforcement needs a warrant to collect CSLI from cell service providers -- the first hole that's been poked in the Third Party Doctrine since its inception almost 40 years ago. If not for the Riley decision -- the one that recognized phones no longer resembled "containers" or "pockets," but rather contained a detailed depiction of a person's entire life -- the Supreme Court may not have arrived at this conclusion. But it was that decision that first conjured up the image of the government happily discovering people were carrying around personal tracking devices loaded with info 24 hours a day. Grabbing large quantities of CSLI -- 127 days in Carpenter's case -- turned cellphones into ad hoc ankle bracelets, allowing the government to reconstruct someone's movements over a period of months using only a subpoena.

The lower courts are now starting to apply the Carpenter ruling as defendants use this decision to challenge evidence against them. In this case reviewed by the Georgia Court of Appeals, the warrantless acquisition didn't involve cell site location info, but rather a vehicle's black box. Here are the facts of the case, from the decision [PDF]:

On December 15, 2014, the vehicle driven by Victor Lamont Mobley collided with a vehicle driven by W. M. W. M. and the passenger in his vehicle, C. F., were killed in the collision. Mobley was charged with reckless driving, two counts of homicide by vehicle in the first degree (alleging that he caused the deaths of W. M. and C. F. through the act of reckless driving), and speeding (alleging that he drove a vehicle at a speed of 97 miles per hour in a 45-mile-per-hour zone). Mobley moved to suppress evidence that was obtained from the airbag control module (“ACM”) in the vehicle he was driving, which showed that the vehicle was traveling at a speed of 97 miles per hour five seconds before airbag deployment.

Inevitable discovery was the call, with the trial court finding the ACM would have been removed and its data accessed following the crash, so the one-day delay between the original access and the search warrant was negligible. The appeals court dives a little deeper into the issue, bringing along Carpenter for the ride, but not until the concurring opinion. It first takes a look at the implications of the Supreme Court's Riley decision on the warrantless access to otherwise "hidden" info.

Mobley [...] contends that we should follow the reasoning employed by a Florida appellate court, which held (in a divided opinion) that a search warrant was required to access ACM data in an impounded vehicle. The Worsham court found that ACMs “document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible ‘mechanical’ parts of a vehicle.” Citing Riley, supra and analogizing the ACM to a cell phone, the Worsham court reasoned that because the recorded data is not exposed to the public, and because the data is difficult to retrieve and interpret, there is a reasonable expectation of privacy in the data.

The court finds the access of ACM data does not approach the level of privacy intrusion warrantless access to cellphone's contents would. What a driver does on a public road is observable by others, even if not to the level of detail an ACM provides.

We find that, under the circumstances in this case, Mobley did not have a reasonable expectation of privacy in the data from his vehicle’s ACM. See generally Bowling, supra. While an outside observer cannot ascertain the information regarding the use and functioning of a vehicle with the same level of precision as that captured by the ACM, there are outward manifestations of the functioning of some of the vehicle’s systems when a vehicle is operated on public roads. For example, a member of the public can observe a vehicle’s approximate speed; observe whether a vehicle’s brakes are being employed by seeing the vehicle slow down or stop or the brake lights come on, by hearing the sounds of sudden braking; and observe whether the driver is wearing a seatbelt. There is no reasonable expectation of privacy in such information because an individual knowingly exposes such information to the public.

[...]

Information regarding the mechanical functioning of the vehicle and its systems is qualitatively different from photographs, financial information, and other such personal data that may be found on a cell phone.

The Carpenter connection would be long-term data collecting by the ACM, which would allow the government to reconstruct a person's movements over a long period of time. But, as far as the court can tell, most -- if not all -- ACMs only record pertinent info at the time the airbag deploys. It is not a tracking device, wittingly or unwittingly.

The court signs off on its opinion by warning law enforcement that the best route is to always obtain a warrant, if possible.

We therefore limit our holding to the particular facts of this case, and note that future treatment of this issue will likewise depend on the specific facts of the cases under consideration. As such, we reiterate the strong preference for searches to be conducted pursuant to a warrant, see Jones v. State, 337 Ga. App. 545, 548 (1) (788 SE2d 132) (2016), and caution law enforcement officers faced with an investigative need to obtain data from a vehicle’s ACM to err on the side of caution by obtaining a search warrant before retrieving that information.

The concurring opinion notes a few things. First, some ACMs may collect more data than others, making these much more analogous to the CSLI obtained in the Carpenter case. That alone should prompt officers to seek a warrant before downloading the data -- especially when vehicles have been towed and held for a crash investigation. This removes any exigency and allows the search to continue on the court's time, rather than whenever officers feel like it.

It also notes getting a warrant first would be the safer choice as the removal of the ACM may very well qualify as a government trespass onto private property. The automobile exception may excuse cursory searches and inventory of a car's contents if it removed from the scene of a stop, but it does not permit the government to obtain data from a vehicle's electronics.

The opinion reiterates the warning handed out by the majority: Get a warrant.

[L]aw enforcement will find it increasingly tricky to navigate the crossroads of ever-advancing technology and personal privacy as they relate to Fourth Amendment prohibitions. And this difficulty is only exacerbated by the fact that the decisions of the Supreme Court of the United States establish that warrantless searches are typically unreasonable where “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.” But as the Supreme Court emphasized once again in Carpenter v. United States, there remains a tried and true means of safely traversing these crossroads when law enforcement’s specific obligations under the Fourth Amendment are in doubt—get a warrant. This default position seems especially wise in light of the “equilibrium-adjustment” the Supreme Court of the United States recently made in Carpenter.

As for any arguments that new warrant requirements will harm law enforcement efficiency, the court waves them away by explaining the Fourth Amendment isn't supposed to make things easy for the government.

And while obtaining a warrant may not always lend itself to expediency, our republic’s Fourth Amendment jurisprudence has “historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”

It also notes that if anyone's losing the Tech Arms Race, it's citizens, not law enforcement. They're at the mercy of a judicial system that isn't known for its turn rate on tech-implicating cases.

I am confident the vast majority of our law enforcement officers will err on the side of caution and liberty, and get a warrant in cases like the one before us. The law always seems to be several steps behind technology, and this approach strikes me as the most prudent course of action going forward.

The main takeaway from Carpenter is this: Get. A. Warrant. Why take a chance a court may find whatever third party data you built a case on to be protected under the Fourth Amendment? A warrant -- even if badly/broadly written -- will generally score law enforcement some points in the "good faith" category, insulating obtained evidence from attempts to have it suppressed.

Filed Under: 4th amendment, black boxes, carpenter, csli, location info, warrant

Supreme Court Says Warrants Are Needed For Cell Site Location Info

from the 4th-Amendment-Bonus-Content! dept

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.

The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.

[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.

[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

[...]

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.

That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.

More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:

1. The records were obtained from a third party so no warrant should ever be needed.

2. This will law enforcement's work more difficult.

Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.

Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.

Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.

I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.

This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.

Filed Under: 3rd party doctrine, 4th amendment, carpenter, csli, location info, privacy, scotus, supreme court

Supreme Court Hears Arguments In Cell Site Location Info Case

from the no-love-for-The-Man dept

The Supreme Court's review of the Carpenter case -- dealing with the warrantless collection of cell site location info -- kicked off yesterday. Oral arguments featured Nate Wessler of the ACLU facing off against the DOJ's Michael Dreeben in a case that could drastically alter the Third Party Doctrine.

From the early going, it sounds a bit like the court is leaning towards a drastic alteration. There's a lot that can be read from the arguments presented by the justices -- especially those by Trump appointee Neil Gorsuch. After some of the expected arguments -- the Third Party Doctrine, the post-facto privacy invasion that is 100+ days of location tracking, etc. -- Gorsuch wades into pretty novel theory based on the property… um… properties of location data gathered by service providers.

Referencing the privacy protections statutorily mandated by 47 USC § 222 (and the Supreme Court's 2012 decision on GPS tracking devices), Gorsuch goes after the DOJ's lawyer, asking him why records considered by law to be the property of carrier customers aren't afforded the same protection as the Fourth Amendment "papers and effects" they keep in their houses.

GORSUCH: [O]ne thing Jones taught us is -- and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach. So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen. Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?

This wasn't much fun for the DOJ's representative:

MR. DREEBEN: I suppose that if you are insisting that I acknowledge that it's a property right, some consequences are going to follow --

JUSTICE GORSUCH: Right.

MR. DREEBEN: -- from that.

JUSTICE GORSUCH: Okay.

[...]

JUSTICE GORSUCH: In my -- in my hypothetical, if there were a property interest, you're not here to deny that that would be a search of my paper and effect?

MR. DREEBEN: I'm not here to concede it either.

JUSTICE GORSUCH: Okay.

MR. DREEBEN: And the reason that -­-

(Laughter.)

JUSTICE GORSUCH: Okay.

MR. DREEBEN: The reason that I can't concede it is it's a property right that resembles no property right that's existed.

Justice Alito pitched in to point out the likelihood there's no property interest in location records because customers don't ask for it to be collected, can't prevent it from being collected, can't keep the provider from destroying records and, in some cases, can't even demand a copy of these records. But while that may have briefly lit a fire of hope in the DOJ's rep, Gorsuch did his best to extinguish the flame.

MR. DREEBEN: So, Justice Alito, those are a lot of good reasons on why this should not be recognized as a property interest. I can't think of anything that would be characterized as a property interest with those traits. And it would be a -- really a watershed change in the law to treat transferred information as property.

JUSTICE GORSUCH: Well, what does Section 222 do, other than declare this customer proprietary network information --­

MR. DREEBEN: So that -­-

JUSTICE GORSUCH: -- that the carrier cannot disclose?

MR. DREEBEN: It -- it does that in conjunction with a provision that it shall be disclosed as required by law.

JUSTICE GORSUCH: So -- so, let me ask you that. So -- so the government can acknowledge a property right but then strip it of any Fourth Amendment protection. Is that the government's position?

MR. DREEBEN: No, no, but I think that the -­

JUSTICE GORSUCH: And so -- so could we also say maybe that they also get this property right subject to having a non-Article III judge decide the case, or quartering of troops in your home?¹ Could we strip your property interests of all constitutional protection?

MR. DREEBEN: Well, those are pretty far afield. I -- I think what's going on here -­-

JUSTICE GORSUCH: Are they?

^{1 Shout-out to the least hardest working legal advocates in the nation.}

After some discussion about this statute protecting the privacy of info gathered by cell phone companies, along with the government repeatedly pointing to the Third Party Doctrine, the justices discuss the sensitivity of the information being obtained without a warrant, pushing the argument back from the property side Gorsuch proposed to the detailed data being gathered daily (bank records are mentioned) by a variety of third parties. Again, the DOJ argues that no warrants are needed because the "search" isn't performed by the government, but rather by the third parties themselves and the results handed over to law enforcement.

Justice Kagan had some problems with this particular approach.

JUSTICE KAGAN: I understand what you're saying, you're basically saying, well, because the government is going to a third-party here and doing it by subpoena, it doesn't matter how sensitive the information is. It doesn't matter whether there's really a lack of voluntariness on the individual's part in terms of conveying that information to the third-party. And we could go on and we could give, you know, other factors that you might think in a sensible world would matter to this question. And you're saying that all of that is trumped by the fact that the government is doing this by subpoena, rather than by setting up its own cell towers.

Which the government can certainly do. (See also: Stingray devices. This is why this case about historical cell site location info will have a ripple effect on Stingray usage no matter which way it's decided.)

Justice Gorsuch takes this assertion and brings it full circle to the creation of the Constitution and its resulting amendments.

JUSTICE GORSUCH: Mr. Dreeben, it seems like your whole argument boils down to if we get it from a third-party we're okay, regardless of property interest, regardless of anything else. But how does that fit with the original understanding of the Constitution and writs of assistance? You know, John Adams said one of the reasons for the war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops. Why -- why isn't this argument exactly what the framers were concerned about?

MR. DREEBEN: Well, I think that those -- those were writs that allowed people acting under governmental power to enter any place they wanted to search for anything that they wanted.

JUSTICE GORSUCH: Isn't that exactly your argument here, that so long as a third party's involved, we can get anything we want?

MR. DREEBEN: Well, I think the search is being carried out under a writ of assistance by a government agent, operating under government authority; whereas here, we -- the -- if there's a search in the acquisition of cell site information, then it's the cell site company that is acquiring that information without governmental instigation, without --­

JUSTICE GORSUCH: The subpoena --­

MR. DREEBEN: -- governmental agency -­-

JUSTICE GORSUCH: -- being, though, the equivalent of a writ of assistance?

MR. DREEBEN: Oh, I don't think a subpoena is an equivalent of a writ of assistance. A writ of assistance allowed the agent to go into any house, to rip open anything looking for contraband, no limitations.

JUSTICE GORSUCH: Yeah. And you can subpoena anything that any company has anywhere in the globe regardless of any property rights, regardless of any privacy interests, simply because it's a third-party?

The Chief Justice didn't appear too impressed by this line of reasoning either.

MR. DREEBEN: So I -- I think that, as Justice Alito was explaining, there is a traditional understanding that dates back to the time of the founding that subpoenas stand on a different footing from search warrants. And they do that because they are less intrusive, since they do not require the government going into private property and searching itself.

CHIEF JUSTICE ROBERTS: Why does that --­

MR. DREEBEN: And -­-

CHIEF JUSTICE ROBERTS: -- why does that make a difference? The subpoena tells the person who gets it: this is what you have to do.

MR. DREEBEN: Well, I think that most --

CHIEF JUSTICE ROBERTS: Why is that less intrusive? The whole question is whether the information is accessible to the government.

But that's exactly the argument the DOJ is making. No matter how long the records go back, no matter how accurate cell tower location data is, no matter how many points of data each citizen carrying a cell phone creates each day, it should all be no more than a subpoena away because the data is being held by a third party. This is Nate Wessler's summation of the government's assertions:

I just want to highlight that the -- the government, Mr. Dreeben, as I heard him, conceded that the precision of these records doesn't matter at all to the government's theory here. They could be precise, I take it, to within a single inch. And the fact that a third party has custody of them would, in the government's view, vitiate any expectation of privacy, which we think would be a very destructive rule.

It's too early to say how this will turn out, but the with the exception of Justice Alito, very little sympathy was shown for the government's arguments. The justices also had problems with differentiating between short-term collection of CSLI and lengthier collections. It did raise this question in the Jones case -- suggesting long-term monitoring was more invasive than short-term tracking, but did not come to a bright line conclusion. Carpenter's reps are suggesting a 24-hour limit for warrantless CSLI access.

This will be a tough line to draw, especially as courts have pointed out before rights do not spring into existence out of nowhere. If 24 hours isn't a Fourth Amendment violation, why should three months be a problem? Or half a year? What then would stop the government from serving successive subpoenas to gather multiple days of location info, thus rendering the bright line irrelevant? If a decision is going to be made -- one that "fundamentally changes the application of the Fourth Amendment to subpoenas" (as Justice Alito put it) -- it really has to be all or nothing.

But the early skepticism of the government's arguments expressed here is a positive development. This shows the court isn't interested in rubber stamping an extension of the Third Party Doctrine nearly 40 years after the Smith v. Maryland decision. Given the amount of information gathered by third parties, it's time for some fundamental change.

Filed Under: 4th amendment, carpenter, privacy, property rights, scotus, supreme court, third party doctrine