The Third Circuit held oral argument today in the case on the legal standard for historical cell-site information. I blogged about this important case here last week, and the oral argument audio from this morning has been posted here at the Third Circuit’s website. It was a very unusual and free-ranging argument that went for almost an hour-and-a-half, more than twice the scheduled 40 minutes. I wanted to blog my thoughts on the argument as I listened to it, as well as provide some of the key exchanges based on my best effort to transcribe them.
To set the scene, the presiding judge is Dolores Sloviter, a former Chief Judge of the Third Circuit, together with Judge Wallace Tashima, a visiting judge from the Ninth Circuit. Judge Jane Roth was also assigned to the panel, but she was absent from the hearing. Judge Sloviter is a Carter appointee; Judge Tashima a Clinton appointee; and Roth a Bush 41 appointee. The lawyer for the United States is Mark Eckenwiler, DOJ’s guru on electronic surveillance. Kevin Bankston from EFF and U of San Francisco lawprof Susan Freiwald argued as amici. This is a very strong group of advocates: All three work in this area regularly and know their way around these issues.
Here are my thoughts about the argument as I listen to it:
Around 5 minutes in, Judge Sloviter has lots of general questions about the Stored Communications Act. Her questions are somewhat surprising, as they concern sections of the statute that are not actually implicated by this case: Judge Sloviter is asking Eckenwiler to opine on why Congress drew a distinction between 2703(a) and 2703(b), while this case is about 2703(c). (I answer Judge Sloviter’s questions in my article A User’s Guide to the Stored Communications Act, if you’re curious.)
At the 15-minute mark, Judge Sloviter contends that the technology is advancing so that cell phones are giving more and more accurate location information. Eckenwiler contends that this isn’t accurate, and takes the court through the history of the FCC regulations on Enhanced 911 and the resolution of cell-site tracking. The oral argument is actually really technically interesting; there’s a lot of interesting stuff about the government’s ability to conduct cell cite surveillance. (As an aside, Eckenwiler really is a guru on this stuff, both as to the law and the technology: He was my neighbor in the Computer Crime Section in my first year at DOJ, and I spent a ton of time in his office annoying him with questions about ECPA, the Fourth Amendment, and the like.)
At the 23-minute mark, Judge Tashima asks if these sorts of records are routinely kept, and thus available to be disclosed. Eckenwiler says that they are not. Judge Sloviter comments that such records are kept for at least 180 days, which reflects a misunderstanding of the statute: The 180-day distinction is about legal standards for compelling contents if kept, and Judge Sloviter seems to think it is about a requirement to keep non-content records.
The most interesting exchange happens at the 28-minute mark. Judge Sloviter has been asking lots of questions about the technology, and she explains that she wants to say why she is asking so many technology questions. Judge Sloviter:
Let me tell you. As I work on this, I listen to the news. And you know that there are governments in the world that would like to know where some of their people are or have been. For example, have been at a what may be happening today in Iran — have been at a protest. Or at a meeting, a political meeting. Now can the government assure us that (1) it will never try to find out that information and (2) whether that informaton would not be covered by [18 U.S.C. 2703](d)?
Eckenwiler responds that he can’t speak to future hypotheticals like that. Judge Sloviter responds:
But don’t we have to be concerned about that? If the statute would permit the government — not this government right now, but a government — to get information as to where, and it doesn’t have a GPS, but this could be instead of a GPS, wouldn’t the government — a government — find it useful, if it could get that information without probable cause?
Eckenwiler then responds by discussing Supreme Court Fourth Amendment caselaw which indicates that this information isn’t protected by the Fourth Amendment. Judge Sloviter responds that she is looking to express her concerns through a reading of statutory law:
But I’ve set aside the Constitution. My concern — and I can’t talk for Judge Tashima — if we can decide this on a statutory basis, aren’t we obliged to do that rather than hypothesize what the decision would be under the Fourth Amendment? . . . And the Congress knew how to say when you have to come up with a warrant, and that’s a constitutional requirement. And it did that in [2703](a), when it was looking at content. It didn’t say a warrant in [2703](d). And that isn’t that what concerned Magistrate Judge Lenihan?
I’m not sure where Judge Sloviter is going here. She seems to want to read the statute as requiring a warrant to address her concerns with the possibility that a future government might monitor political protesters. But the statute is clear that no warrant is required, and besides, the government couldn’t monitor political protesters under 2703(d)’s Terry order standard anyway.
Around the 36-minute mark, it’s interesting that the panel is still so focused on the technology. I don’t think think they have asked Eckenwiler a legal question about the terms of the relevant section of the statute or the relevant Fourth Amendment law yet.
At the 38-minute mark, Judge Sloviter explains that she has been on the Third Circuit for more than 30 years, and she thinks that magistrate judges “are not very grudging” about issuing warrants. She seems to think that judges will sign applications for warrants, so the government should just get warrants for these records. She asks, “Why do you want to make the point that you don’t have to show probable cause?” Eckenwiler makes the point that the statute requires a lower threshold — that this is what the statute says. Judge Sloviter responds, “okay, let’s go to the statute.” Interestingly, I think this is the first time the actual part of the statue at issue here has been raised, and we’re 40 minutes in to the argument.
At the 40-minute mark, Judge Sloviter suggests that judges have discretion to decline applications under 18 U.S.C. 2703(d). Here’s the language of the statute:
A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts . . . .
Judge Sloviter asks, doesn’t the use of the word “may” suggest that judges have the discretion to decline applications if the judge, at his or her discretion, wants the government to get a warrant? I think Judge Sloviter’s suggestion is wrong here. The use of “may” reflects the fact that judges need authorization to issue specific kinds of orders. 18 U.S.C. 2703(d) orders were created in 1994 for the first time; The section confers the power to issue these orders on any court of “competent jurisdiction,” a term defined elsewhere in the statute. The use of “may” creates the power to issue the order; it doesn’t signify that the judge has the option to do it at the judge’s discretion.
At the 46-minute mark, Eckenwiler makes a critical admission: He has never seen the HBO series The Wire. Judge Sloviter is surprised. (I am, too. It may be the best show on TV ever.) Eckenwiler declines to mention that at least he watches a lot of Jeopardy!; he even appeared on the show twice.
Kevin Bankston starts at the 48-minute mark. He argues that 2703(d) orders are optional, and that courts should construe the statute to avoid the Fourth Amendment problem by allowing judges to say a warrant is required. The discussion then turns again to the technical question of how accurate cell-site information actually is. Bankston is arguing that cell phone cell site data is protected under Karo; if you make a call from a home, the cell site information could reveal the phone is inside the home, information about the home. I don’t think this works under Smith v. Maryland, though: In response to the claim that numbers dialed from a home revealed information from inside the home, Smith responded, “Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.”
At the 60-minute mark, Judge Tashima says he finds it hard to read the statute as vesting discretion in the magistrate judge as to what the standard is to issue the order. Bankston responds that the discretion is bounded, as there are only two standards — the Terry equivalent or the warrant equivalent. Bankston argues that the plain language of 2703(d) vests that discretion in the msgiatrate by saying that the language “may issue.”
Susan Freiwald goes at the 66-minute mark (she is an amicus together with EFF). She is arguing that the Fourth Amendment requires a warrant for this information. Judge Tashima asks if Freiwald agrees with Eckenwiler’s assessment of how accurate the cell site data is; Freiwald responds that it’s complicated, and it’s not really clear how accurate such data can be. Freiwald also argues that cell cite information is distinguishable from Smith and Miller because the information is generated without the knowledge and control of the user: the user knows he is transferring numbers to the phone company to place the call, but he doesn’t know that his cell phone is transferring location information to the company to keep in touch. She also argues that the information revealed via cell cite data is more intimate than the numbers dialed in Smith, and that the government should be able to satisfy the minimal requirement of a warrant.
Eckenwiler is back at the 75-minute mark for his rebuttal. Judge Sloviter has questions about the Fourth Amendment issues, and whether and when the government needs a warrant to use a tracking device. Eckenwiler explains Karo and Knotts, but I think that this case is all about Smith v. Maryland. People who have cell phones know they are there; that’s pretty different from a tracking device or GPS case, I think. That’s why in my view the discussion of the resolution of cell-site information is beside the point; That’s the standard that applies when the person is unaware of the device that is sending the signals, whereas Smith is the case on point when the user is aware of the device.
All in all, I found the argument puzzling, and the likely path of the decision quite uncertain. Judge Sloviter was obviously quite skeptical of the government’s case, but I wasn’t sure what hook she might try to find (if any) to address her concerns that a government could abuse this power if it had to get reasonable suspicion orders instead of probable cause orders. Judge Tashima didn’t show his cards as much, but I thought he seemed to lean the government’s way. If Tashima and Sloviter disagree, the key vote becomes Judge Roth: Judge Roth wasn’t present at the argument, so it’s hard to know where the case might be going.
Soronel Haetir says:
This panel sounds like the judges are either confused or simply looking to ignore what the law says because they don’t like what it says.
Is it normal for a judge to skip oral argument? That bit seemed very odd to me.
February 13, 2010, 8:51 amGrant Gould says:
(Disclosure: I used to work in the cellular base stations business)
One complexity is that the accuracy of cell site information is actually driven in part by federal law. The so-called E911 Phase 2 requirements mandate that the network must be able to locate a certain percentage of phones to within a certain number of meters within a certian number of seconds in event of a “location request” (typically a 911 call). While in theory this can be done with GPS or other handset-side technologies, or only when a location request is in progress, carriers can’t mandate those handsets or be sure that the handset can transmit enough information in the required itme, so they often have to solve the problem with network-side technologies using stored data.
Most of these technologies work by mining the data the network has to have to remain operational — times phones entered and left location areas, cells, and sectors of cells, speed-of-light delays and signal strengths from the 3 to 6 towers that the phone reports it can receive, complex algorithms relating to local geography and signal propagation, and so forth. They also sometimes require the network to request or process additional “measurement reports” from phones.
So given that it is the government — not the network — that determines the extent of network-side technologies to improve the accuracy of the network’s ability to locate phones, it hardly seems cricket for them to turn around and argue that the accuracy isn’t very good: They could tighten up that accuracy by administrative fiat tomorrow. It rather seems like they’re asking to be allowed to play with a deck they’ve already stacked.
February 13, 2010, 9:13 amEli Rabett says:
This sounds like the typical telephone story. Technical information that changes on an almost daily basis is being filtered through lawyers who have spoken to engineers to judges who are clueless. There gotta be a better way
February 13, 2010, 9:29 amsol vason says:
I suppose the FBI has a list of all the people who drove a car or brought a cell phone to each Tea Party meeting this year and a second list of people who attended 5 or more Tea Party events.
They may have a list of the people called by these conspirators.
February 13, 2010, 10:00 amStephen Lathrop says:
Does anybody remember who it was who said you’re not going to have any privacy, get over it?
And then added that the way to defend yourself in that situation is to be sure no one else has any privacy either.
Looks like that’s where we’re headed–except for the second part.
February 13, 2010, 10:20 amjcm says:
the government couldn’t monitor political protesters under 2703(d)‘s Terry order standard anyway
February 13, 2010, 10:32 amYes the government could, it can be illegal but it could .
If the Iran´s government can , they will do it , no matter what the USA government do . So why they refer to the iranian government?
It has always puzzled me ( im a foreign lawyer) the Katz argument. The expectation of privacy. I do have an expectation of privacy when i talk to a physician , thats why im candid with her or him. Why i dont have the same expectation with an accouter or the phone company? i revealed the information , the data, to a third part so i lost then expectation? No , i did it with the expectation that privacy will remain protecting my information, data, unless the superior right of an innocent third party is concerned. Not a nebulous security concern.
“simply looking to ignore what the law says because they don’t like what it says.” They have to check the law against the Constitution and ignore it if plainly unconstitutional
2010 has been call the year of wired phone devices.So if cell phones can be surveilled without a warrant would it be also the year of the fourth amendment demise ?
Oren says:
JCM, physician-patient privilege is a common-law privilege that is entirely unrelated to the 4A or any expectation of privacy.
They have, and as it happens, the law is plainly constitutional. The only question that remains is one of statutory construction.
February 13, 2010, 10:59 amOren says:
Stephen, it was the CEO of Sun Microsystems.
Do you think that any Magistrate Judge would consider driving a car or attended a Tea Party to meet the standard of 2703(d)?
February 13, 2010, 11:03 amDave N. says:
I was wondering if Judge Roth participated by some other means. I have had two oral arguments (one of which was an en banc court) where a judge was “present” via closed-circuit television. Both times it kind of reminded me of Max Headroom.
By the way, Judge Roth (the widow of Senator William Roth), is 75, which may explain her absence, at least in part.
February 13, 2010, 11:10 amJohn Thacker says:
I’m sorry, I don’t see how Smith v. Maryland is relevant. The information needed to locate somebody is very different from the numbers transmitted to dial a phone. Users do have a reasonable expectation that they’re transmitting a phone number; they do not have a reasonable expectation that they’re transmitting sufficient information to, combined with other network information, identify their location and match it up with them as the owner of the phone.
February 13, 2010, 11:26 amTRE says:
As a government lawyer, at least he has no reasonable grounds to complain for getting shafted by a totally arbitrary and unfair final jeopardy!
Similarly, what recourse do we have if this becomes overused? I had my 4th amendment rights violated the other day by an overzealous police officer, who may have been motivated by good intentions towards protecting the community or may have been bored, feeling down, and looking for a power trip. At least in this kind of thing we won’t even know right?
February 13, 2010, 11:31 amtroll_dc2 says:
I am, as usual, confused. Can someone set me straight?
1. In the United States at present, it seems most unlikely that allowing the authorities freely to track cell-phone location will cause a problem with people who are not engaged in illegal activities. Places like Iran (or perhaps Russia at some point) serve as a warning of what could occur here, but that is not about to happen. On the other hand, the Nixon Administration created an “enemies’ list” and sought to go after people whom it did not like. What might it have accomplished if it had had today’s technology? Is it conceivable that we could have another regime like that one?
2. I am not thrilled at the idea that the government could know where I am at any moment. But what is the harm to me if it does? What is the harm to society if it does? So long as it cannot obtain the content of my messages (and is limited in its ability to find out with whom I have been in contact), is there really a problem here?
February 13, 2010, 11:47 amOren says:
Please see Orin’s earlier post on misunderstanding the “reasonable expectation of privacy” test. It has little to do with what the person expects will happen to a particular datum.
After that, I’d suggest reading US v. Knotts, a decision that basically disclaimed any REP in your movements around in public.
Congress has provided you with a remedy.
Wrong. In the United States, the government can track locations after providing a neutral magistrate judge with specific and articulable facts as directed by 18USC2703(d).
Considering that the government may perfectly legally assign 2 officers to follow you around 24 hours a day (staying of course on public property when you enter your house and following you again when you leave, it’s a really boring job), I don’t think we need to answer this question.
Location information, insofar as it does not reveal intimate details such as where you are within a private space (contrast Knotts with Kyllo), is not even a search under the 4A.
February 13, 2010, 12:12 pmChris Travers says:
A slightly-off-topic question:
What was the case that we hear the end of the oral argument in (involving AOL in some way) prior to this case?
February 13, 2010, 12:15 pmChris Travers says:
I think what is going on here is more clear after reading the EFF’s brief. The government argued (around 14 min in) that all non-content was unprotected. Presumably this would include GPS data, since this isn’t content per se. This then gets to the question over whether the magistrate MUST issue the court order, or whether the magistrate has the freedom under the statute to say “apply for a warrant.”
(i.e. the EFF’s parsing of “shall only issue” vs “shall issue”)
I might be wrong here, but that seems to me the most likely approach. Am I missing something?
February 13, 2010, 12:33 pmElliot says:
Several years ago I read an article that said even if a cell phone is turned off it still maintains some type of communication with the mothership. This article said the only way to prevent this and completely disable the phone is to remove the battery.
Anybody know the facts here?
February 13, 2010, 12:54 pmChris Travers says:
Not typically. There would be some serious technological problems with doing this, including the fact that it would run the battery down pretty quickly if the reception was not good.
Normally there are registration communications when the phone is powered on, and at certain intervals.
February 13, 2010, 1:15 pmShane says:
Well, civil libertarians can at least be reassured that in that scenario, the high cost of this kind of surveillance deters the government from using this power excessively. Most importantly, no amount of officer physical surveillance can reach back into the past and find out where someone was 180 days before the investigation started.
I don’t have any comments about the legal questions, I just don’t like the government having this power, as a matter of policy. If the statute allows the government to get historical cell site data without a warrant (enforced with the threat of the exclusionary rule) then the law should be changed.
February 13, 2010, 1:24 pmOren says:
But the EFF specifically said that they want the magistrate to use the discretionary power to allay the (IMO non-existant) 4A question. That is, they use the doctrine of constitutional avoidance to argue that the magistrate must have discretion — the alternative being unconstitutional. Since I don’t but the latter, I can’t buy the former.
February 13, 2010, 1:26 pmChris Travers says:
Do you think the EFF mischaracterizes Knotts?
February 13, 2010, 1:36 pmChris Travers says:
(re: Knotts and Karo: The issue there is that the EFF suggests the court drew a line between tracking a vehicle on the roadway and between using the beeper data to infer that the beeper was in a private place, such as merely within a private house.)
February 13, 2010, 1:42 pmTom Huff says:
Prof. Kerr,
Thanks for these very interesting posts. I haven’t read the briefs yet–just your posts–but I was curious if you viewed this as an easy case under Smith or a semi-difficult one?
I can appreciate that cell phone tracking is significantly less intrusive than the use of a Karo-style tracking device; the latter is secretly planted by the government, whereas a cell phone is obviously not. And I suppose a privacy-conscious kind of guy can always just turn his phone off if he doesn’t want to be tracked (whereas the unknowing carrier of a beeper doesn’t have this option).
Still, as a non-expert, it’s also not immediately obvious to me why the Smith pen register case controls. As I recall, Smith made a fairly big deal over general public awareness that the phone company keeps records of the numbers we dial. (e.g. For one, we see the numbers on our bills every month. Plus, we even depend on the phone company to be able to trace phone numbers when we are victims of obscene or threatening phone calls.)
More broadly, I do understand Smith as a mere continuation of the general Fourth Amendment rule that people have no privacy rights in information that they voluntarily turn over to third parties. In Smith, the guy had taken the *active* step of dialing a phone number, which meant that he had actively/voluntarily turned it over to the phone company, which meant that he’d waived his privacy in it.
But to me, cell phone tracking information seems different because the trackee isn’t taking any *active* steps to voluntarily turn over any information. The phone’s transmission of location info is *passive*, at least as far as the user is concerned. Perhaps this is ultimately a distinction without difference under the Fourth Amendment. But intuitively, it just seems different to me.
February 13, 2010, 1:52 pmTom Huff says:
Just a quick follow-up thought:
Is it fair to say that the wiretap vs pen register standard is basically just an extension of the letter vs envelope information standard? (i.e. A private phone conversation is like the contents of a sealed letter–it’s private stuff, so a warrant is needed to get that info? Whereas the phone number a person dials to initiate a phone conversation is more like the address that someone writes on the envelope–it’s stuff that hasn’t been kept private, and so the govt doesn’t need a warrant to get that info?)
If so, I think my issue is that I have trouble naturally fitting cell phone tracking information into either of these two categories.
February 13, 2010, 1:55 pmChris Travers says:
Question for Oren (and Orin) #2:
If you don’t think cell phone location data (as non-content) is protected under the 4th Amendment due to Smith, if the police requested a subsection d court order for more precise information (GPS, multi-cell info, etc) would the magistrate judge have an option to decline the request and ask them to apply for a warrant instead? In other words, does the statute allow the magistrate to make this determination on a case-by-case basis for non-content information?
I ask this regardless of whether you think the magistrate was right to refuse this specific application.
(I am not asking about the Constitution but rather the statute because I think the court is most likely to rule on statutory rather than Constitutional grounds.)
February 13, 2010, 2:03 pmInstapundit » Blog Archive » ORIN KERR: Thoughts on the Oral Argument in the Third Circuit Cell-Site Records Case…. says:
[...] ORIN KERR: Thoughts on the Oral Argument in the Third Circuit Cell-Site Records Case. [...]
February 13, 2010, 2:10 pmOren says:
I think they give the dicta in Knotts consider weight. The key factual conclusion in Knotts was that the beeper did not reveal anything an officer could not observe from the roadway.
My phone arrived in the off position and I took the *active* step of turning it on.
I really don’t know the answer here. I buy the statutory argument that “may” grants discretion but Congress did not seem to indicate what sort of factors the MJ should use in that. I’m tempted, as Orin does, to simply conclude that there is no discretion just to avoid the silly problem of Congress giving the MJ a ‘what’ without any ‘why’.
February 13, 2010, 2:24 pmChris Travers says:
One more question for Orin:
Do you find it odd that nobody mentioned Smith in the oral argument, and that the government even tried to suggest that the question would be governed by the Karo standard?
February 13, 2010, 2:25 pmOren says:
I should clarify — I don’t think Congress intended to vest in the MJ the discretion to deny applications under 2703(d) because it’s rainy and to grant them when it’s sunny. That is, it makes no sense to grant someone discretion without giving some notion of the kind of inquiry the MJ is supposed to make.
Perhaps Congress should just s/may/shall/ 2703(d) and just be done with it (or, conversely, they can keep the ‘may’ and provide some reason why a MJ might deny it). As it stands, I’m having a hard time rationalizing their intent here.
February 13, 2010, 2:27 pmChris Travers says:
Right. However, wasn’t this dicta part of the primary opinion in United States v. Karo?
I.e. in Karo, the police violated the suspect’s fourth amendment rights when they inferred the 50-gallon drum was in a private house. (The search was upheld because there was enough other information to provide probable cause however.)
February 13, 2010, 2:29 pmDave N. says:
Yeah, just like Columbo.
February 13, 2010, 2:36 pmChris Travers says:
To be fair, that argument was pretty conclusively shot down by the EFF lawyer. I am surprised you didn’t hear this in the oral argument.
The “may” clause, according to the EFF lawyer, was added solely to clarify jurisdictional issues. Hence it addresses what sort of court can issue an order (choice of venue issues, not requirements for the order). Hence “may be issued by any court of competent jurisdiction” tells you that any court of competent jurisdiction may issue the order. It doesn’t address under what circumstances an order may or must be issued.
“Shall be issued by any court of competent jurisdiction” doesn’t seem right. I think you meant that Congress should just strike the word “only” from the statute.
The EFF’s position here is instead that “shall only issue” requires a permissive reading, that the magistrate may not issue the order if the condition is not met, but is not required to issue the order if the requirement is met. Here they argue that this is in contrast to other surveillance statutes which generally omit the “only.” Hence in the other statutes, “shall issue” means that the court must issue the order or warrant if the conditions set forth in the statute are met. However “shall only issue” simply means that the court may not issue the order unless the conditions in the statute are met, but doesn’t require issuance if those conditions are formally met. I don’t see Orin disputing this issue above. Indeed he seems to concede that point, suggesting that the question hinges on the accuracy of information requested. However, his point is unclear on this issue and so perhaps he will enlighten us regarding how he reads the statute.
February 13, 2010, 2:48 pmToby says:
Once again, the government is in the position of killing its parents and asking for mercy as an orphan. Once again, the government is citing as a common business practice an activity that it mandated so as to get around the Bill of Rights.
And once again, here is an activity wherein lawyers have twisted plain English to mean something special, contrary to what the man in the street thinks the words mean, and then act huffy (see many comments above) when questioned.
I have talked to many people about this case. There is not one of them that does not feel that the government is violating privacy, is fundamentally cheating, on this one. Many, though, shrug and feel that the government and the growing police state will get away with it.
What fundamental constitutional busy-bodiness requires that 911 calls always identify exactly where the caller is? I have trouble squeezing this one even into the much abused Commerce clause. Still, the nanny state mandated tracking this information. Then, with this law, the state takes a second pass, and asserts that, because this information is routinely tracked (because they mandated it), then there can be no possible concern in the police state tracking it now, and in the past, with no limits on man-power or vehicles, to them tracking it for everyone at all times.
The founders were literate, and they would have read Milton, who in Paradise Lost wrote
Or as C.S. Lewis updated the formulation,
This last election cycle saw state employees abusing their authority to harass and discredit private citizens who questioned their favored candidate. Those on the left have claimed that the previous administration can and would do anything, abuse any right to have its way. Those on the right were horrified at rank intimidation of political discourse found in the current administration collecting emails of dissenters. How can those on either side honestly accept the 4th amendment suffering a death of a thousand cuts.
Only a lawyer, enamored with some ill-argued, ill-thought out precedent, could misunderstand that the blind acceptance of any and all intrusions of technology would soon eliminate the 4th amendment entirely. The complete loss of privacy *is* the complete negation of the 4th amendment.
February 13, 2010, 2:52 pmrobert mandresh says:
How valuable is the information that can be obtained by the government? It seems to me that anyone with bad intentions would use throw away phones bought with cash. As an aside, as a non lawyer, what is up with the word ‘may ‘in a legal phrase. Is it not well defined? I did not understand why one of the presiding judges questioned if it meant she could issue a warrant for the records, or it meant she she had to . I will not quit my day job, but I must say I enjoy this site. I just wish I had the knowledge to more fully comprehend your comments.
February 13, 2010, 3:11 pmChris Travers says:
One thing I disagree with Orin on. He wrote:
I am not entirely sure of this. Suppose (as a hypothetical) I organize The American Jihad Party promising an Islamic revolution in this country (by Constitutional means if possible, by force if necessary, so staying in our official information within the Yates test but raising concern nonetheless).
Is there any doubt that AEDPA and USAPATRIOT-type investigations as to whether there is any coordination with foreign terrorist organizations would not allow the government to try to get all information about people who were at a given AJP-hosted protest? It seems to me that the specific and articulable facts would allow the government to obtain this sort of information. Is there anything I am missing?
February 13, 2010, 3:16 pmMJN1957 says:
Toby,
You nailed it perfectly…
February 13, 2010, 3:21 pmOrin Kerr says:
Chris Travers:
I think the argument that 2703(d) orders can be denied at the discretion of the judge is completely ludicrous, actually. 2703(d) was enacted in 1994, and I’ve been working with and writing about the statute since 1998, and no one that I know of has ever even suggested the idea until the magistrate opinion below. Not EFF, not anyone. More broadly, I have never come across, or even heard of, a court order procedure that gave judges the option of granting the order but at their discretion; the very idea is so bizarre that it seems to me plainly foreclosed by the canon of statutory interpretation that statutes should not be interpreted to generate absurd results. I suspect that everyone involved in the litigation knows that this argument is a big stretch; I gather the thinking is that if the judges are hellbent on affirming, this gives them a way to do it that at least resembles the traditional form of a legal argument.
February 13, 2010, 3:23 pmOrin Kerr says:
Chris Travers:
1) What is an “AEDPA and USAPATRIOT-type investigation”? Is that supposed to mean a national-security related criminal investigation?
2) Under 2703(d), the government needs to open a criminal investigation, and there has to be specific and articulable factual reasons to believe that the information that will be collected — here, information at a resolution of several hundred meters as to where a phone was located at some time in the past — provides relevant and material information to an ongoing criminal investigation. What’s your thinking as to how the government could apply that to your hypothetical to satisfy the standard in the hypothetical case of a political protest?
February 13, 2010, 3:30 pmChris Travers says:
“Material aid” to foreign terrorist organizations. Yes, it is a criminal investigation.
(addressing specific facts in another comment so I can re-read government briefs in Holder v. HLP)
February 13, 2010, 3:31 pmBRM says:
Judge Tashima was appointed to the district court by President Carter, but was appointed to the Ninth Circuit by President Clinton.
February 13, 2010, 3:33 pmChris Travers says:
Re: articulable facts in my hypothetical:
1) My hypothetical political party advocates, as an abstract matter, the violent overthrow of the US government if necessary. While this is Constitutionally protected (and cannot be criminalized), it seems to raise questions of what involvement might actually be in upcoming terrorist attacks.
2) The government’s position in Holder v. HLP is that the “material support” encompasses an extremely broad range of activities including coordinated public relations addresses, moral support, filing amicus briefs in support of organizations trying to get off the list by filing court challenges. Given the clear common goals (erosion of Western-style democracy, expansion of the Islamic world) between the domestic political party and several organizations that the State Department lists as foreign terrorist organizations, there is a reasonable suspicion that contacts may be used in furthering the mission of the AJP from such organizations.
3) The inclusion of the word “Jihad” in the United States has clear implications of violent activity.
Would that be enough to get a court order of this sort?
If not, would it make a difference if the party was outwardly and overtly sympathetic to Hamas and Islamic Jihad in the Occupied Territories and the Muslim Brotherhood in Egypt?
(I am trying to keep this hypothetical as close as possible to what the Iranian government alleges regarding their protests.)
February 13, 2010, 3:45 pmOren says:
Chris, my apologies, I skipped that part of the argument (or I listened to it and it didn’t register). You are entirely right that I completely misconstrued that ‘may’.
That certainly seems plausible as a matter of construction. Is there any evidence that Congress intended for 2703(d) to be discretionary?
Well, there have to be “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.”
If the government does, in fact, have an open criminal investgation and believes that the location data of ( not, as you suggest, “all information about [...]“) people would be material to the criminal investigation, why should they not have access to it? I presume it’s legal for the police to sit on a nearby building with a telephoto lens and snap pictures of the protest without even going in front of a MJ.
Toby, if so many people agree with your policy position (entirely apart from the legal one, and you would do well to keep that is/ought distinction a bit more clear) then you should have no trouble convincing Congress to remove 18USC2703(d). My hunch is that while you’ve talked to “many people”, those people are all in the subset of folks that agree with you. Perhaps you should spend some time talking with people with which you disagree? I, for one, find it to be a lot more rewarding.
February 13, 2010, 3:46 pmtroll_dc2 says:
I came to this thread immediately after reading an account of the oral argument in The Inquirer, and Prof. Kerr and the commenters have now given me the equivalent of a law-school class. So I went to the statute to see what all of the relevant language is. It reads: “A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only 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.”
I read “may be issued” as meaning merely “is issuable” by an appropriate court. I read “shall issue only if” as removing discretion from the court if and once it finds that reasonable grounds exist; Congress used the mandatory “shall” instead of the permissive “may” here. The only weasel words are “reasonable ground,” “relevant,” and “material.” Those words go to the strength of the government’s presentation; if the court does not like that presentation for other reasons, I read the statute as not allowing the court to turn down the government’s request.
February 13, 2010, 3:46 pmChris Travers says:
That clears that up. Just to be sure, you believe that the statute would mean the exact same thing if “only” was struck from it, right?
One way to read the statute is that it might allow a case-by-case 4th Amendment analysis. Is there anything that would prevent the court from reading it this way? Or do you think that even, say, if in the future, one could place the cell phone to within a few feet inside an apartment building or a private home, that this would still be outside the 4th Amendment’s protection (i.e. that Smith always governs and never Karo)?
If so, do you find it odd that both sides argued over what Karo required instead of pointing to Smith?
February 13, 2010, 4:00 pmCorky Boyd says:
Elliot
I recall this being from a quote by Porter Goss, then CIA Director, after 22 inept operatives were charged by the Italian government for the rendition of an Egyptian cleric to his home country. A story in the Chicago Tribune (no longer retrievable) quoted a furious Goss as wanting to send all of his operatives back to school to relearn their tradecraft. Here is a contemporaneous quote of the Trib article from a blog. The article doesn’t attribute it to Goss, but it does give the details of the technology.
http://www.danieldrezner.com/archives/002486.html
Hope this helps.
February 13, 2010, 4:51 pmMicha Elyi says:
In an earlier comment…
Then…
Thanks, Oren. The basic idea also appeared in John Brunner’s 1975 novel The Shockwave Rider.
February 13, 2010, 5:10 pmChris Travers says:
Just to clarify: This is when the phone is on but not actively engaged in sending or receiving cellular communications.
February 13, 2010, 5:32 pmPeter Gerdes says:
To be even more precise it is whenever the cell phone is on, even if the user is not making a call or transferring data. In such a state the phone is sending and receiving cellular communications that provide the cellular network the necessary information to route incoming calls and messages. The rule of thumb is that if you are able to recieve incoming calls/data the network needs to know roughly where you are. So if the phone is turned off, in airplane mode or similar configuration it’s not transmitting your information to the cellular network.
However, if your phone supports bluetooth, wifi or similar technologies it might still leave an electronic trail of your activities in nearby receivers. If you’re merely a drug dealer no one’s going to track down logs from access points or other receivers to determine your location but it’s incompetence on the part of a spy to leave any unnecessary transmitter during a covert operation.
February 13, 2010, 7:08 pmPintler says:
If those phones spend any time at your house, they won’t be as anonymous as you would hope.
February 13, 2010, 7:18 pmchris rennick says:
Actually, what Corky was saying is that these signals occur even when the phone is OFF but the batteries are still in the phone (and, presumably, charged). After all, in this day of instant on technology nothing is ever “off” anymore. Any one who has ever watched an episode of “24″ knows that you have to stomp on your phone to make it stop giving your position away. This act may be cathartic for many but is not practical for most. The theme for this thread is that privacy is not for the little people.
Changing gears here for a moment, a lot of folks seem to think that the requirement there be an on-going criminal investigation is some sort of protection against abuse. But what constitutes an on going criminal investigation other than what the DA and the police say it is? It’s just a database entry somewhere. Does anyone want to get on the wrong side of someone with the ethics of Mike Nifong? I am sympathetic to the argument that the transaction costs associated with surveillance should be sufficient to restrain abuse but the costs here seem to be going down. How long before it takes only a twitter post to open a criminal investigation? When will a “court of competent jurisdiction” become an iPhone App?
February 13, 2010, 8:15 pmChris Travers says:
What I am saying is that is inaccurate.
However, removing the batteries is probably a good idea anyway because sometimes phones get accidentally turned on, and if this happens the first thing it will do is sign onto the network…..
There are some basic things that prevent a phone which is powered down from being able to usefully try to ping the network. The most important of these is that if the cell was trying to do this and reception was questionable, the battery would run down very quickly even with the phone of. I don’t know if you have ever been in an area where you get a very weak cell signal but battery life isn’t very good. If in these cases, your cell was trying to ping the network even when powered off you’d notice pretty fast.
As noted by another poster, there may, in some cases, be a few corner cases where non-cell-network traces might remain but I haven’t had a chance to look into this carefully. I am pretty sure that 802.11-type communications (wifi) would require being powered on though. I suppose if one had a feature that allowed the device to be powered on via a bluetooth signal, it would have to be negotiating that signal even if the power was off, but this wouldn’t be a cell network signal.
February 13, 2010, 9:46 pmChilling [Updated] - Law Socio-Political - - Dueling Barstools says:
[...] legal discussion here on the merits of the government’s case. I liked this comment the best though. Once again, the [...]
February 13, 2010, 9:47 pmOren says:
Anyone who watches “24″ with an eye towards learning about technology [ the end of the sentence is omitted because it grossly violates the commenting policy. ]
February 13, 2010, 9:50 pmChris Travers says:
One more point about powered-down network communications.
While it would be possible to build a phone that would do this, I am fairly certain it would not be permitted on the market today. In particular in addition to the technological problems, you also have regulatory ones including rules by the FCC which very strictly preclude cell phone/cell network traffic on board an airplane which is in the air. (Leaving aside the FAA regulations for a moment which are much more flexible.)
If the cell phones of everyone on an airplane on an airplane were signing into networks, that would violate all manner of FCC regulations… I will also point out that there are very sound reasons for these regulations on the FCC’s part in terms of how cell phones interact with towers, capacity, billing difficulties on the part of cell phone service providers, etc.
February 13, 2010, 10:27 pmtroll_dc2 says:
A number of posters in some threads that I have looked at have posted their views of what the law “should” be. So here is mine in this area.
I don’t think that the standard of lawfulness of a search should be the umbrella concept of “reasonable expectation of privacy.” Rather, I would look to the specific concepts encompassed by the words of the Fourth Amendment: persons, houses, papers, and effects. Hence, I would not grant constitutional protection to things that do not disclose content. I am not sure whether I would even require a statutory procedure here.
No court order should be needed to discover information about anything that a non-governmental person could discover without engaging in trespass or other violations of the law. This would be permit creation of data bases focused on individuals of interest. It also would permit cameras in public places and such things as the use of equipment to run checks of every license plate seen on the road.
Of course, when you put all of this together, you set the stage for a nightmare. When does something that is okay individually become not okay collectively? I do not know. But terrorist activity is something that we have never before faced in our history and that was not contemplated by the framers of the Constitution. Even until very recently, we had no concept that there would be people willing to die for religious and ideological reasons if they can kill us too and destroy as much as possible.
I believe that the government has the right to try to prevent this from happening. This may require adjustments to our thinking of what the law can forbid or regulate. There could well be some abuses. I am thinking that the remedy should be monetarily (from the government) and not suppression.
February 13, 2010, 10:55 pmChris Travers says:
I think this country has a short memory.
Italian-American anarchists orchestrated a series of deadly bombings in the early 20th century. I don’t think we want to repeat the show trial approach that sometimes dominated the fight against those threats.
February 14, 2010, 1:17 amtroll_dc2 says:
Who is talking about show trials? I am talking about preventing mass murder of civilians by people who would kill themselves as well. Planting bombs and running away so as to be able to plant some more another day is quite different from driving a truck onto a bridge and blowing it up, turning a crowded airplane into a missile, becoming a human bomb on an airplane, and the like. In the second case the person seeking to terrorize us is limited only by his imagination and the strength of the countervailing security systems. If he succeeds, there is no one left to hold a trial about.
You seized on my phrase “terrorist activity” and decided that your riposte was enough to dismiss what I wrote. But you ignored the second sentence that you quoted. Do you have a Wikipedia reference to dismiss that sentence as well?
February 14, 2010, 5:30 amChris Travers says:
Before I begin, sorry for the tone of my post. I tend to react fairly strongly to the suggestion that we should sacrifice our liberties for security because I think the government is fundamentally more dangerous to our safety and way of life than any terrorist group is (and I have said this consistently since 9/11). Our greatest danger is that we will vest too many vague powers in the hands of government that can be used to punish dissidents. Whether or not the inclusion of Sen. Kennedy on the No-Fly-List was intentional or not, it should serve as a warning.
First of all, I think when we are looking at an indefinite conflict with no clear victory condition, it is a mistake to sacrifice liberty in pursuit of phantoms of victory. The simple fact is this is not a “war” which can be “won.” It thus resembles a law enforcement threat much more than it resembles a military threat though it has elements of both.
Despite the fact that I was, and remain, generally opposed to the policies of George W Bush, there are a number of things he got right in the aftermath of 9/11. That there were more things I think he got wrong doesn’t detract from that. In particular, following Bush, we need to put our emphasis on lawless regions of the world, and work with allies or alone to try to force some level of governance and law enforcement there. I would take this further than any policy made public by Bush in a number of ways, but I think the overall emphasis is sound.
I maintain that there are things which can be done which don’t require giving up our rule of law or our civil liberties which can make us acceptably safe. Yet no security is perfect. The first thing we need to do is understand that. I will rethink the liberty balance if and only if the terrorists show they are capable of being a greater risk to personal safety than automobile crashes for a sustained time. Even in September of 2001, though, they didn’t accomplish that. The only circumstances I can think of would be:
1) An attack 20% larger than 9/11 every month or
2) A small nuclear attack every decade.
Until we get to that point, though, the danger isn’t sufficient to allow our liberties to be eroded.
Even at the height of the Second Intifada, the Palestinian terrorist organizations couldn’t match automobiles as a threat to the safety of the average Israeli. We might as well try to keep the safety issues in proportion.
February 14, 2010, 2:15 pmtroll_dc2 says:
I quite agree that our government is a threat. I also agree about the danger of giving it vague power to punish dissidents and shut down dissent. The Bush Administration exhibited some of those tendencies to an alarming degree. It seems to be hard for government to be sensitive when it is in security mode; it is so much easier to have flat rules (which get administered by people who want to protect themselves from criticism and who also have a tendency not to be too bright or knowledgeable).
I am not sure that the goal is victory; we can never stop people from trying to do bad things. What we have to do is to keep them from succeeding. There are law-enforcement elements here, I agree, but I think that the vast majority of the would-be and actual perpetrators can be properly classified as enemy combatants; they are motivated not by the conventional objectives of ordinary criminals but by the transcendent objective of changing our foreign policy through violent means and spreading their version of religion. In this regard, they seek to kill as many of us as they possibly can and are willing to be martyrs to advance this goal.
Fine, but that is not the only way to respond.
So what would you do if you had intelligence about plans to blow up subway trains? Or to use a truck bomb to blow up a bridge crossing New York harbor? Or to attack a military base? How about a plot to blow up an airplane using a makeshift explosive that the person is wearing? (I realize that some of these would have been carried out by citizens and that the people involved have been or would be prosecuted in federal court [except perhaps for the latest airplane would-be bomber]. I simply am challenging your point about how everything depends on the number of people put at potential risk.)
I agree, but I would be aggressive if I had any inkling of untoward activity of this nature. If it succeeds, there are not many people left who can be prosecuted. Not only that, but a successful attack will fuel calls for even greater government surveillance and repression. You ought to keep that in mind when you give primary focus to civil liberties; you need to ask whether all civil liberties are equal at all times.
I trust that I have been suitably provocative.
February 14, 2010, 3:31 pmChris Travers says:
Ok. I think there are a couple of things to keep in mind here. First every one of these can be treated conceptually as a law enforcement problem. As I say we shouldn’t assume that our only options are to accept the threat or to squash it. In reality I think the first thing we have to do is accept the threat and then take steps, consistent with our commitment to the rule of law, to minimize such a threat. This means different approaches on different fronts.
On the domestic front, standard law enforcement options really should be our primary focus. This should include some intelligence sharing with foreign intelligence services, but not in Constitutionally suspect areas (see below). Similarly, some high value targets can be hardened with a commitment to systematic security measures (many power plants are already secured properly).
On the foreign front, the goal ought to be surveillance and cooperation with foreign law enforcement bodies except in lawless zones and countries where more options may be on the table. I think a number of programs would be acceptable to me provided that certain protections were in place.
For example, I think a program like the Bush-era warrantless wiretapping program could be made acceptable by ensuring that proper steps were taken to ensure that the call material was only used in a foreign intelligence context and could never lead to domestic search warrants. I would want there to be public assurances and court involvement in such matters however. (To be fair, it turned out that further investigative pieces by the Washington Post suggested that the courts were overseeing the program and that one key demand was that the material could never lead to domestic search warrants, but the public could have possibly been better kept in the loop here regarding the protections in place.)
Similarly I don’t have a categorical problem with predator strikes in lawless areas of Yemen and Pakistan, though if we ever see them in London or Islamabad I think they will be over the line.
Thirdly we need to borrow a page from the NTSB playbook and, after every attack, launch an investigation into what measures can actually be successful at preventing future attacks. For example, given the Christmas Day attack, there are a number of obvious proposals, including better handling of complaints made to our embassy. These should then be debated publicly and changes made in accordance with public will, expert opinion, and the Constitution.
Lastly we should put such efforts in context. The better security at airports, better handling of complaints lodged at embassies, etc. should be seen as a way of increasing the required resources to carry out a successful attack and hence giving ordinary law enforcement and foreign intelligence personnel a fighting chance of disrupting plots before they strike. However, if our approach is aimed at attention to details, better investigative approaches, etc. we can minimize the impact, scale, and danger of future terrorist attacks without necessarily reducing our expectations of liberty.
February 14, 2010, 5:49 pmtroll_dc2 says:
I do not have much to disagree with regarding your most recent comment. But would you allow cell-phone tracking if the government had only reasonable suspicion?
(This post is getting a bit old. If you want to continue an exchange of views on this subject, you can reach me at yahoo.com using the name that you see here.)
February 15, 2010, 4:26 pmChris Travers says:
I think there are some very severe concerns regarding generic non-content tracking material on cell phones.
If the material was limited to tower/sector data, excluding femtocell information, excluding any timing/signalling data, excluding any gps data, and limited to an accuracy of a few hundred yards, I would be OK with it. Once you start including any of those things though I think you start getting into Karo territory (even as the government admitted in this case) and at that point, the government should get a warrant.
I suppose if they don’t get a warrant and it turns out they end up with data allowing them to place an individual on, say, the fourth floor of an office building, then I think one should be dealing with the exclusionary rule. (Femtocells usually have a theoretical maximum range of 200 feet. However in many cases where they would be applied in urban environments the effective range would be far, far less, perhaps even limited to one floor of an office building.)
Bottom line, I think the government should apply for a warrant. If they don’t do so, I think any time the data reaches into a protected space, then the lack of a warrant should mean exclusion of this and any fruits of the poisonous tree.
February 15, 2010, 10:41 pmtroll_dc2 says:
I cannot easily address your post because I do not know the limits of the concept of “protected space.” A house certainly is, but what about an office building that is accessible by anyone? I might agree that a particular office is “protected space,” but what about the entire floor, which is used by dozens of people?
I must add, by the way, that I am assuming that we are talking about American society as it presently is. If we degenerate into a place like, say, Russia, with its corruption at all levels and its overweening political control, then my approach would change radically.
February 16, 2010, 1:51 pmChris Travers says:
I am assuming a Karo-type test. Vague surveillance may not be a problem under Karo, but if the cell phone is then tracked into a closed and protected structure, then it would seem to pose a problem. I am not sure you can know this in advance, so it is a question whether:
1) Information turned over via a subsection d subpoena which intrudes on such space means immediate invocation of the exclusionary rule or
2) Whether a magistrate is empowered to say “no, apply for a warrant.”
Our system tends to be based on the first, but I am not sure the second is fundamentally less absurd.
How do you know in advance that a femtocell covers a floor of an office building where everyone is allowed entrance rather than a floor of an office building which requires a cardkey to get into? The government’s objection in Karo was that an adverse ruling would require them to get a warrant ANY TIME they wanted to use these sorts of beepers. The court said they weren’t concerned with that argument and provided an ruling that was adverse to the government’s uses of beepers anyway.
In essence I am wondering if it is more absurd to treat this statute as a form of Russian Roulette regarding each investigation, or whether it is more absurd to empower magistrates to deny subpoena requests when it is even questionable.
However, if we accept Karo, then we have to treat “shall issue only” the same as “shall issue” and simply say that the proper protection is exclusion when the Karo test is violated. Again, though, treating the statute as endorsing a game of letal Russian Roulette regarding evidence seems absurd to an outsider, though perhaps not to a criminal lawyer.
February 16, 2010, 3:24 pmtroll_dc2 says:
The more I read about the need to protect “civil liberties” in the situation that we are discussing, the less I like civil liberties. Like “privacy” (which is being invoked to oppose a proposal to allow the police, prosecutors, and schools in Maryland to exchange information about students suspected of gang activity–see today’s Washington Post), the umbrella concept becomes absurd when taken to the extreme. The question that is never asked is WHY there should be a restriction; rather, the practice seems to be to apply a label and declare the matter settled. The desired result seems to be that everyone can know about problems except the people who might be able to do something about them.
February 16, 2010, 5:25 pmChris Travers says:
I think you have to go back and look at why we have the 4th Amendment in the first place. The reason why we do is because the British were essentially using writs of assistance in place of search warrants, allowing searches really with very little oversight.
If non-content data of this sort ends up intruding into traditionally protected areas, then there is ample room for concern. One problem with cell site data is that one cannot be sure in advance that the data won’t intrude. Hence a search warrant may not be absolutely required but not getting one seems to be engaging in a crap shoot.
I think a lot of this comes down to the fact that the exclusionary rule is invoked when a search overreaches in this way. If the Third Circuit rules that Karo is the governing precedent here, then this doesn’t prohibit the government from obtaining cell site data without a warrant, but it makes it dangerous to any investigation to do so.
I have been thinking a lot about Prof. Kerr’s objection to the permissive reading of this statute, and I have concluded it isn’t a matter of absurd consequences per se, but rather the fact that we generally want our court system at every step of the way to be entirely predictable. If a magistrate is free to say “I am not sure about the Constitutional issues in this request, so please apply for a warrant instead” then this changes the operations of the court from entirely predictable (apply for subpoena => get it => oops, the data overreaches => exclusion of it and all fruits of that tree) to unpredictable. This may be seen as absurd even if the net result is an over-all increase in predictability of the system as a whole (fewer exclusions).
The point is not that police shouldn’t be able to search houses, or obtain data where there is probable cause, but rather that this should be limited to specific instances where probable cause exists, and where it is overseen by the court.
I suppose I would be happy with either direction, provided that the Karo test was determined to govern this sort of case instead of the Smith test.
February 17, 2010, 7:23 pmUS Code says:
Prof. Kerr–
Would your view of the constitutional issues in this case change if the government sought the cell site information produced by the cell phone every 7 seconds even when the phone is otherwise idle, as opposed to the information transmitted in order to make actual cellular calls? The latter obviously fits more neatly into the analogy to Smith v. Maryland, but I suppose you could also assume that cell phone users (and owners) know that their phones constantly register with the cell network so long as the phone is turned on. It is not as though the government planted the phone.
Also, I agree with your statutory analysis as to historical cell site information. I think that plainly falls within 2703(c)–although quite a few district courts have disagreed. But the harder statutory question involves real-time tracking via cell site information. Given its prospective nature, using cell tracking this way seems beyond the scope of the SCA. I know that DOJ has suggested statutory authority by combining the Pen/Trap Statute with the SCA. Do you have a view?
April 23, 2010, 4:56 pm