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3rd Circuit to Mull Privacy of Cell Phone Data

February 13, 2010

3rd Circuit to Mull Privacy of Cell Phone Data

Case offers rare glimpse into the mechanics of federal criminal investigations where nearly all documents are filed ex parte and stay under seal until indictments are handed up

In a case that could prove to be one of the most important privacy rights battles of the modern era, the 3rd U.S. Circuit Court of Appeals will hear argument this week on the proper legal standard to apply when prosecutors demand cell phone location data.

The data, which are recorded about once every seven seconds whenever a cell phone is turned on, effectively track the whereabouts and the comings and goings of every cell phone user.

Justice Department lawyers argue that, by statute, they need only show “reasonable grounds” to believe that such records are “relevant and material to an ongoing criminal investigation.”

But a federal magistrate judge in Pittsburgh strongly disagreed in February 2008, issuing a 52-page opinion that said the prosecutors must meet the “probable cause” standard.

“This court believes that citizens continue to hold a reasonable expectation of privacy in the information the government seeks regarding their physical movements/locations — even now that such information is routinely produced by their cell phones — and that, therefore, the government’s investigatory search of such information continues to be protected by the Fourth Amendment’s warrant requirement,” U.S. Magistrate Judge Lisa Pupo Lenihan wrote.

Now, in an appeal of Lenihan’s ruling, the 3rd Circuit will become the first federal appellate court to tackle the question as Justice Department lawyers square off against a coalition of privacy and civil liberties lawyers from the Electronic Frontier Foundation, the Center for Democracy & Technology and the American Civil Liberties Union.

The appeal is scheduled to be heard on Thursday by 3rd Circuit Judges Dolores K. Sloviter and Jane R. Roth and visiting 9th Circuit Senior Judge A. Wallace Tashima.

Justice Department attorney Mark Eckenwiler will argue for the federal government and will be opposed by Kevin Bankston of the Electronic Frontier Foundation and law professor Susan Freiwald of the University of San Francisco School of Law.

The case offers a rare glimpse into the mechanics of federal criminal investigations where nearly all documents are filed ex parte and remain under seal until indictments are handed up.

When prosecutors in Pittsburgh asked for cell phone location data in an ongoing narcotics case, the response from Lenihan was an emphatic rejection of the Justice Department’s approach to the issue.

The issue went public because Lenihan declared that her opinion “shall not be sealed because it is a matter of first impression in this district and circuit on issues concerning the statutory and Constitutional regulation of electronic surveillance which do not hinge on the particulars of the underlying investigation.”

In a show of unanimity, the opinion was also signed by all four of the other magistrate judges in the Western District of Pennsylvania — Susan Paradise Baxter, Francis X. Caiazza, Amy Reynolds Hay and Robert C. Mitchell — and U.S. District Judge Terrence McVerry later issued a three-page order that affirmed Lenihan’s opinion.

In the opinion, Lenihan began by saying the issue was not whether prosecutors had the right to cell phone location data, but only the standard they must meet to secure a court order requiring a cell phone service provider to turn over such data.

Prosecutors argued that, under the Stored Communications Act, either alone or when read together with the Pen Register Statute, the courts should apply a reasonable relevance standard.

In his 3rd Circuit brief, Eckenwiler said the Pittsburgh prosecutors made the request in connection with “an ongoing investigation into large-scale narcotics trafficking and various related violent crimes.”

The cell phone location data were needed, Eckenwiler argued, because one of the targets of the investigation uses a variety of vehicles and properties to conduct the illegal activities and “physical surveillance has proven difficult.”

Lenihan ruled that prosecutors must meet a probable cause test when seeking cell phone location data because such information “is extraordinarily personal and potentially sensitive.”

Under a lower standard, Lenihan said, the data would be “particularly vulnerable to abuse” because of the ex parte nature of the proceedings and the “undetectable nature” of the cell phone service provider’s compliance with such an order.

In a lengthy section of the opinion, Lenihan described the quickly evolving technology.

“Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called ‘registration,’ occurs approximately every seven seconds,” she wrote.

As cell phone users change locations, the cell phones “automatically switch cell towers,” she wrote, and telephone companies “track the identity of the cell towers serving a phone.”

In urban areas, where towers have become increasingly concentrated, Lenihan said, tracking the location of just the nearest tower itself can place the phone within approximately 200 feet, and triangulation data can provide an even more precise location, as close as 50 feet.

Phones equipped with global positioning system, or GPS, capabilities, can be tracked extremely accurately, Lenihan noted.

Lenihan concluded that the data sought by the prosecutor amounted to “tracking information,” and that Congress clearly intended to require prosecutors to meet a probable cause test to secure such data.

The Justice Department argues that Lenihan got the issues wrong because the statutes clearly allow the government to require “a provider of electronic communication service” to disclose “a record or other information pertaining to a subscriber.”

Eckenwiler argued that “a request for historical cell-site information based upon specific and articulable facts establishing reasonable grounds satisfies each of the requirements of the statute.”

No Fourth Amendment privacy interest is implicated, Eckenwiler argues, since cell phone companies “regularly generate and retain” such records, and since the records “provide only a very general indication of a user’s whereabouts at certain times in the past.”

But Freiwald argues in her brief that “to deny Fourth Amendment protection based on the government’s assurance that it seeks only limited [cell phone location data] flouts the fundamental principle that Fourth Amendment protections may not be left in the hands of law enforcement agents.”

Bankston, in a brief jointly filed by the Electronic Frontier Foundation, the ACLU and the Center for Democracy & Technology, urges the 3rd Circuit to uphold Lenihan’s ruling on the grounds that Congress intended to give judges the discretion to deny such requests and require prosecutors to meet the ordinary standard for a search warrant.

Cell phone users, Bankston argues, have an expectation of privacy in such data because they “simply do not voluntarily expose their location whenever they make calls and receive calls … nor do they do so merely by turning on their cell phones.”

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