A few federal court opinions have been making a big public splash recently by taking surprising positions on how the Fourth Amendment applies to location surveillance. The latest opinion in the line is Magistrate Judge James Orenstein‘s decision in In The Matter Of An Application Of The United States Of America And Order For An Order Authorizing The Release Of Historical Cell-Site Information, handed down on Friday. The decision holds that historical cell-cite data — records generated by cell phone providers in the ordinary course of business that indicate which cell towers were communicating with a phone, and thus, the rough location of the phone — is protected by the Fourth Amendment and its warrant requirement.
It’s only a decision by a Magistrate Judge, and it is not binding on anyone. But it is an extraordinary opinion, in my view: It’s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors. In this post, I want to explain the decision and then explain why I think it is plainly incorrect as a matter of Fourth Amendment law.
I. Magistrate Judge Orenstein’s Opinion
The basic reasoning of the opinion follows these steps:
(1) The government has applied for a “specific and articulable facts” court order commanding the phone company to disclose historical cell-site information pursuant to 18 U.S.C. 2703(c). Magistrate Judge Orenstein acknowledges that the government’s application satisfies Section 2703(c). But he states that he has the power to rule on whether a court order, when implemented, will be used in a way that violates the Fourth Amendment — and to deny the order if in his view the statute would be used in an unconstitutional way. He thus makes the application for a court order an opportunity to reach a holding about the Fourth Amendment, and implicitly, the constitutionality of this aspect of the Stored Communication Act.
(2) Magistrate Judge Orenstein then rules that based on the mosaic theory of the Fourth Amendment introduced on August 6 by the D.C. Circuit in United States v. Maynard, that cell-site surveillance should be treated as a search just like GPS surveillance:
I find the opinion in Maynard persuasive, both with respect to its demonstration that Knotts is not dispositive on the issue of prolonged location tracking, and with respect to its analysis of the privacy interest at stake when the government uses technological means to accomplish the kind of prolonged, continuous, and detailed surveillance that would otherwise be impossible.
In contrast to the Maynard court, however, Judge Orenstein does not say exactly what the mosaic is that violates the Fourth Amendment. As a result. he does not say that a certain amount of disclosure would be allowed, but that more is not because it would create a mosaic. Instead, he appears to reason that it is merely “the ability” of the technology to amass the mosaic that triggers the Fourth Amendment. As close as he comes to making this point explicit is in this passage:
The Maynard court’s concern with sustained GPS tracking over the course of a month was not its formally continuous nature, but rather the fact that it results in a vast collection of specific data points that, viewed together, convey the “intimate picture” of the subject’s life. It is the ability to amass a collection of such points, and not the ability to trace the route from each one to the next, that carries with it the ability to resolve those points into a comprehensible picture. Thus, the fact that the government now seeks only certain data points, by itself, does not serve to distinguish the investigative technique at issue here from the one considered in Maynard in any meaningful way.
As best I can tell, the idea here is that historical cell site information has “the ability to resolve those points into a comprehensible picture” that would violate a reasonable expectation of privacy. Thus cell site data is protected by the Fourth Amendment, even in only small amounts, and the order is denied.
(3) Magistrate Judge Orenstein next confronts the closely analogous Supreme Court decision in Smith v. Maryland, which held that numbers dialed are not protected. He distinguishes Smith by relying on a passage from the vacated panel decision from the Sixth Circuit in Warshak v. United States that had held that e-mails contents were protected by the Fourth Amendment. Judge Martin’s opinion in Warshak had taken the view that a reasonable expectation of privacy depends on whether information is likely to be known to be revealed to other people. (This is wrong as a matter of Fourth Amendment law, I should point out, but it’s what the vacated panel decision had suggested.) As best I can tell, Magistrate Judge Orenstein uses that reasoning to suggest that there is a difference between numbers dialed voluntarily when you place a call and the cell towers revealing their contact (not in a way known to the user) in a cell phone call. Thus there is a reasonable expectation of privacy in non-content cell-cite records just like there is in the contents of e-mail in the vacated panel decision in Warshak.
(4) Orenstein then concludes that federal statutory privacy law confirms the reasonableness of an expectation of privacy in cell-site information. To be sure, federal law expressly rejects a warrant requirement for that information in the Stored Communications Act, the law at issue in this case. But there was a law passed in 1999 called the Wireless Communication and Public Safety Act of 1999 that authorized the deployment of a nation-wide 9-1-1 emergency service for wireless phone users, called “Enhanced 9-1-1.” That legislation amended the telecom laws to treat location information as protected information in the telecom setting, which Magistrate Judge Orenstein sees as “legislative approval for the idea that a caller should expect her location information to remain private notwithstanding the unavoidable need to share it with a third-party service provider.”
(5) Judge Orenstein next suggests that the Supreme Court’s third party doctrine is not binding law because the Fourth Amendment must “continually develop.” The third-party doctrine is the rule “that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443 (1976). If you accept this language from Miller at face value, Magistrate Judge Orenstein says, then the government is correct that the Fourth Amendment does not apply. But that language can’t be right, he concludes, because such a result would be “irreconcilably at odds with the notion that the Fourth Amendment allows our society to continually develop and refine its definition of the privacy claims it wishes to endorse.” Orenstein explains:
If an explicit declaration by the national legislature that disclosing one’s location information to a service provider should not be deemed to serve as consent for further dissemination of such information, it is difficult to see how our society can effectively implement a consensus to recognize as legitimate an expectation of privacy in any form of information that must be shared among private parties to be usable.
(6) Judge Orenstein recognizes the Supreme Court’s recent warning that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” City of Ontario, Cal. v. Quon, — U.S. —-, 130 S. Ct. 2619, 2629 (2010). But he proclaims that there is a flip side, which he explains with this rather dramatic passage at the end:
It likewise risks error in being too reticent on that score. In particular, by waiting too long to weigh in on the constitutionality of warrantless access to newly created kinds of information, the judiciary risks the error of transforming from mere assertion to self-fulfilling prophecy the government’s contention that people categorically lack any reasonable expectation of privacy in such information.
As the Supreme Court acknowledged in Quon when it alluded to the progression from Olmstead to Katz, the Fourth Amendment’s concept of an “unreasonable” intrusion into one’s personal affairs, by its very nature, is not stuck in the amber of the year 1791. That concept must
instead evolve along with the myriad ways in which humans contrive to interact with one another. As the threads that connect us are increasingly entrusted into the hands of strangers who promise to make those connections broader, more intimate, more efficient, and more productive, a jurisprudence that mechanically relies on that fact to disclaim the need for meaningful oversight of the government’s investigative techniques unwisely abandons the critical and continuing task of identifying the expectations of privacy our society is prepared to recognize as reasonable.The Fourth Amendment cannot properly be read to impose on our populace the dilemma of either ceding to the state any meaningful claim to personal privacy or effectively withdrawing from a technologically maturing society.
II. Why Magistrate Judge Orenstein’s Opinion is Clearly Incorrect on the Law
A lot of people have strong feelings about the propriety of government surveillance as a matter of policy. But as a matter of Fourth Amendment law, I think Judge Orenstein’s opinion is pretty clearly incorrect. It’s incorrect in ways that suggest that Judge Orenstein has a basic misunderstanding of the Fourth Amendment. I think it’s also wrong in misunderstanding the role of magistrate judges in Fourth Amendment law. More broadly, the decision strikes me as the kind of opinion judges write when they have settled on a result they know is a stretch and are marshaling all the support they can, however sparse, to get there. In sum, in my view, the opinion is hard to defend as a neutral application of existing law. In this part of the post, I want to explain why.
For my critique, I’ll follow the series of arguments that Judge Orenstein makes and respond to each:
(1) First, I don’t think Judge Orenstein has the legal authority to rule on the constitutionality of 18 U.S.C. 2703 in an ex ante application. As I have argued in this forthcoming article, applications for court orders do not bestow upon magistrate judges the general authority to imagine how the order would be executed and then to deny the government the power to do what the judge expects would be unconstitutional. Rather, the judge must follow the statute and grant the order. The resulting surveillance can be challenged under the Constitution once it occurs, but the magistrate can’t preemptively adjudicate what hasn’t happened yet when the application is made to him for the court order. Unfortunately, Judge Orenstein doesn’t address this issue: He simply assumes he has the power to do what he does.
(2) Judge Orenstein states that the DC Circuit’s August 6th decision in Maynard is persuasive to him, and announces that he will follow it. I think this is problematic for two reasons. First, given that Maynard is a brand new case from another circuit that is at odds with every other Fourth Amendment surveillance opinion I’ve ever read, as I explained here, it seems weird to just announce that you find it persuasive and to follow it as the leading decision. Why not follow circuit precedent instead? Why not follow the other circuits? Is the new DC Circuit mosaic theory right? It seems to me that some argument for that would be helpful. Not necessarily required, to be sure: But given the state of the law, very helpful.
Second, and more importantly, Judge Orenstein’s opinion actually appears to reject the reasoning of Maynard when it becomes inconvenient. Under the reasoning of Maynard, there is a certain amount of surveillance that is allowed until the combined effect is so much that a mosaic is created. If Judge Orenstein is really following Maynard, he should say that he’ll allow the disclosure of some amount of records but not so many records that a mosaic is created — drawing the line when he thinks a mosaic is drawn. Instead, Judge Orenstein says that it is merely “the ability” of the technology to amass the mosaic that matters. But that’s not what Maynard says: In fact, it’s the opposite of what Maynard says. It seems to me that Orenstein uses the reasoning of Maynard to get around Knotts and to say there was a Fourth Amendment violation, but then he discards the reasoning of Maynard when it would point to the result of allowing non-mosaic evidence to be disclosed without a warrant.
(3) Judge Orenstein’s effort to distinguish the Supreme Court’s decision in Smith v. Maryland is very unpersuasive. As I explained here, a cell site signal is closely analogous to numbers dialed in Smith. It’s a signal that the user sends to the phone company that is necessary for the phone company to deliver the user’s calls. It is a necessary part of placing the call, and information that is necessarily transmitted to the phone company for the course of delivery. It’s information that you don’t want the phone company to have, but that you necessarily have to give them to use the technology: It’s just how the technology works. Given the close similarities, it seems to me that Smith is on all fours with the case of cell-site information. It just seems unavoidable that Smith applies here.
To get around Smith, Judge Orenstein tries to rely on the Sixth Circuit’s vacated panel decision in Warshak, which Judge Orenstein suggests, bizarrely, was somehow retained in part in the Warshak en banc decision (!). What a puzzling choice. The Warshak panel decision was overturned, and its reasoning wiped off the books: Just read the positively blistering dissent that the author of the panel decision (Boyce Martin) filed in his dissent to the Warshak en banc opinion if you’re unsure. Following stray language from the vacated panel decision about what makes an expectation of privacy reasonable is a really poor decision, as that stray language was plainly incorrect as I explained here And it’s not like Warshak was even factually relevant: Warshak involved Fourth Amendment protection for the contents of e-mails, whereas this case involves Fourth Amendment protection for non-content cell-site records of cellular phone calls.
(4) Judge Orenstein next argues that federal privacy law is a source of understandings of what expectations are reasonable. But he has to ignore a lot of law and facts to get there. First, he has to ignore the fact that this argument was tried and rejected by the Supreme Court recently in City of Ontario v. Quon. In Quon, the defendant tried to say that the legal protections of the Stored Communications Act established a reasonable expectation of privacy because it was society’s judgment of what privacy was reasonable. The Supreme Court disagreed:
Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise. See Virginia v. Moore, 553 U. S. 164, 168 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U. S. 35, 43 (1988) (rejecting argument that if state law forbade police search of individual’s garbage the search would violate the Fourth Amendment).
Strangely, Orenstein does not mention Quon, Moore, or Greenwood here. Instead, he reasons from first principles that he thinks statutory privacy laws are guides to what makes an expectation of privacy reasonable. But even if you accepted this (false) premise, the reality is that Congress has enacted a law that rejects a warrant requirement for this type of information in the exact setting in which the government is seeking it in this case: 18 U.S.C. 2703(c). Indeed, when legislative proposals to change the law to impose a warrant requirement have been made, Congress has never acted on them because they haven’t had the support to be enacted into law.
Judge Orenstein works his way around this uncomfortable fact by saying that Congress never really had a specific “intent” to regulate cell-site information when it rejected a warrant requirement for such records, and instead turning to the Enhanced 911 Act that amended the telecom laws. But this is pretty silly, in my view. What do the telecom laws have to do with the issue? And why is the fact that the telecom laws treated cell-site information “differently” indicate that there is a societal view that such information should be protected by a warrant requirement when the law Congress did enact clearly rejected a warrant requirement in this setting? It’s all rather strange. Think about it: Judge Orenstein is saying that Congress’s judgment about the privacy of cell-site records in a 1999 law not implicated in this case requires him to say that the privacy law Congress did enact that plainly covers this case is unconstitutional because it doesn’t reflect Congress’s judgment. That makes no sense: If you want to know Congress’s judgment about privacy, why not just follow the privacy law that Congress actually enacted? It is a strange paean to Congress’s judgment to use that judgment to invalidate Congress’s statute.
(5) But wait, it gets even stranger. Judge Orenstein then explains that the third-party doctrine is not binding on him because the Fourth Amendment must “continually develop.” As best I can tell, Judge Orenstein sees Supreme Court decisions as time-bound: They are in force only so long as Judge Orenstein believes that society today is the same as society was in the past. But that’s not how Fourth Amendment law works. When the Supreme Court rules that the Fourth Amendment does or does not protect something, that is a ruling that lower court judges are required to accept. If the Supreme Court decides to overturn its precedents, it can. But that’s not a job for magistrate judges.
I think Judge Orenstein’s critical error here is in imagining that the reasonable expectation of privacy test is descriptive. He seems to think that judges look at “society” and then answer whether that society sees it as reasonable. If that’s the law, each judge gets to create his or her own Fourth Amendment law based on his own view of what “society” is like in any particular time. That would seem to explain Judge Orenstein’s comment that “by waiting too long to weigh in on the constitutionality of warrantless access to newly created kinds of information, the judiciary risks the error of transforming from mere assertion to self-fulfilling prophecy the government’s contention that people categorically lack any reasonable expectation of privacy in such information.” In Orenstein’s vision, as best I can tell, the judiciary needs to make rulings that shape society and determine what privacy rights that society would think are reasonable. If the government conducts lots of warrantless surveillance, eventually the society accepts that and it becomes reasonable. So he needs to step in and say that this surveillance is unconstitutional to ensure that society will develop in a way that will have this surveillance be unconstitutional.
That’s not how the Fourth Amendment works, however. It’s up to the Supreme Court to say what kind of government conduct violates a reasonable expectation of privacy. Lower court judges, including magistrate judges, have to apply the Supreme Court’s understanding of the concept rather than devise their own. More broadly, the reasonable expectation of privacy test is not just descriptive. Rather it is a normative inquiry made by the Supreme Court, in which the Justices set the terms of the framework for specific kinds of cases in their opinions and lower courts are supposed to apply the court’s decisions in a localized fashion. That’s why Judge Orenstein is just wrong to think that he needs to “weigh in” to avoid a self-fulfilling prophecy: Judicial interpretations of the Fourth Amendment may announce what is protected by a reasonable expectation of privacy as a matter of law, but they do not determine it in any factual sense.
(6) Judge Orenstein’s passage at the end — to the effect that “he Fourth Amendment cannot properly be read to impose on our populace the dilemma of either ceding to the state any meaningful claim to personal privacy or effectively withdrawing from a technologically maturing society” — will ring a bell for readers familiar with Fourth Amendment caselaw. That argument, and the passage at the end more broadly, is almost an exact copy of the argument made by Justice Marshall’s dissent in Smith v. Maryland, the pen register case. But that was just a dissent, and the Supreme Court has gone the other way in rejecting that argument. It seems curious for a magistrate judge to make the argument of a dissenting Justice in the most factually analogous Supreme Court decision instead of the argument of the majority.
(7) Finally, I wanted to flag another strange passage in Judge Orenstein’s opinion. In footnote 5, Judge Orenstein has an extensive discussion of why the law here is unclear. I personally think there are two reasons. First, Congress has chosen not to include a statutory suppression remedy for violations of the SCA. Second, defense attorneys haven’t tried to challenge collection of cell site information for some reason (perhaps because of Smith v. Maryland). But Judge Orenstein blames DOJ instead, in part for not appealing magistrate denials of applications for surveillance orders:
[W]hile the government unquestionably knows when its requests are denied, and just as unquestionably has standing to seek review of such denials, it has (with one exception in the Third Circuit) steadfastly chosen to avoid seeking such review.
The result, in this circuit and others, has been an unpredictable legal regime in which an individual’s right to privacy waxes and wanes based on the fortuity of the location in which an investigation is based and of each district court’s system for assigning miscellaneous criminal
duty to its judges.
This is based on a misunderstanding of the law, I think. A significant reason DOJ mostly hasn’t appealed the denials is not because of “standing”, but rather because of the final order doctrine. The law here is very sparse, but the sparse law tends to suggest that denial of ex ante applications are not appealable final orders. See, e.g., United States v. Savides, 658 F. Supp. 1399, 1404 (N.D. Ill. 1987) (“A probable cause determination on an application for a search warrant by a magistrate is not a final order. Simply stated, the government has no right to appeal if it believes the magistrate erred in denying the warrant.“) (emphasis added), aff’d on other grounds sub. nom, United States v. Pace, 898 F.2d 1218, 1230 (7th Cir. 1990).
It’s true that DOJ did appeal such a denial in the Third Circuit despite Savides. But that doesn’t mean it’s lawful to do so, much less “unquestionably” lawful. The lawfulness of the appeal is uncertain: It just happens that no one challenged DOJ’s right to appeal in that case, so it was never briefed. More broadly, the problem here is not with DOJ, but with Congress. When it enacted the SCA, Congress didn’t think through how courts would have a chance to interpret the law and hand down decisions clarifying the law. That’s a problem of statutory design that Congress needs to fix, I think, not the fault of DOJ.
Christopher Soghoian says:
Orin,
As a computer scientist, I’m not qualified to get into a debate on the 4th Amendment issues. However, I am qualified to disagree with some of the other things in your post.
I don’t know what “here” is, because the link is broken. In any case, there is a big difference between phone numbers dialed, and cell site data, and it is simply wrong to say that it is a signal or other information that the user “sends” or “transmits” to the phone company.
The user actively types in a phone number (or selects someone from their phone’s memory) and initiates a call. In this instance, they are actively transmitting the phone number to the phone company.
However, the user does not actively transmit their location to the phone company. They make a call, and the phone company simply retains log information detailing which tower the user connected to. Of course, you need to communicate with a tower to make a call, but I think it is flawed to say this is an act of the user transmitting their location information.
Given that phones are essentially a magic box, I would be extremely surprised if many consumers even know about the existence of cell towers, let alone how they work, and the data revealed to the phone company about their use.
I think it is also useful to mention that there is a difference between a phone company receiving information and it retaining that same information. Most carriers refuse to publicly discuss their data retention periods for this kind of data, and have in recent years significantly increased the periods for which they retain it. According to telecom lawyer Al Gidari, location data was retained for as little as 30 days two years ago, and is now routinely retained for periods of one year or longer (see: http://news.cnet.com/8301-13578_3-10451518-38.html)
I’m not sure if I agree with this either. When the Stored Communications Act was passed, cell site data didn’t exist. The words “cell site” and “location” are nowhere to be found in the text of 18 USC 2703, and to imply that Congress somehow intended for this information to be disclosed without a warrant is quite simply incorrect.
Yes, it is true that Congress hasn’t gotten around to updating the SCA to deal with location information — but to argue that lack of congressional action is somehow equivalent to congress blessing the current, broken status quo is also a flawed view, I think.
August 31, 2010, 6:37 amMichael P says:
I think this hits the nail on the head. So much of the creeping infringement on personal liberty and privacy is driven by picking the closest available analogy (in existing law) without examining whether that analogy is close enough to merit application. I wouldn’t mind so much if there was transparency by cell phone providers about what they do with cell site data, how roaming and other contracts impact who handles that data, and if there were sufficient notice when government seeks that information. However, none of those exist today.
Contra Prof. Kerr’s claim that this surveillance could be challenged once it occurs, how is someone who is investigated in this manner supposed to know until or unless they are prosecuted on the basis of it? Are courts inclined to consider the poisonous fruit doctrine for cases like this, or (as I suspect) will they blithely accept whatever other evidence the government has collected as sufficient to retroactively justify cell-site surveillance?
August 31, 2010, 7:56 amJim Harper says:
Orin, you repeatedly say “Fourth Amendment law” here when you might be more clear in calling it “Fourth Amendment doctrine.” This would distinguish between what the Fourth Amendment actually says and what courts have encrusted to it, including the “reasonable expectation of privacy” test and, a further encrustment on that, the third party doctrine.
If you re-read the Supreme Court’s actual holding in U.S. v. Katz, for example, you find that it did not adopt the “reasonable expectation of privacy” test, which Harlan’s concurrence imported. Though the Supreme Court has certainly used that test in later cases, its birth was a breech.
When a magistrate’s ruling exposes the cracks in doctrine that go all the way back to a canonical case like Katz, that can be disconcerting, but many recognize the fundamental circularity in the reasonable expectation of privacy test. It’s interesting — not shocking — to see how a court deals with the stacked errors in doctrine that spring from the reasonable expectation test and the utterly subjective, one-sided application of it in Smith.
My contribution — one of many to work on the weakness of the reasonable expectation test — is entitled “Reforming Fourth Amendment Privacy Doctrine” in the American University Law Review.
August 31, 2010, 7:57 amJustin says:
I’m sure the decision is incorrect, but your overuse of terms like “extraordinary” and “clearly” and various pejoratives hurts my eyes and makes it difficult (as an ex-clerk) to read your article. I recommend in the future toning down the adjectives and pejoratives in order to come across more persuasively.
In that sense, I agree with “some very strong language.”
August 31, 2010, 8:38 amJoe says:
Realistically, “doctrine” is “law.” “What the Fourth Amendment says” is translated to hard and fast everyday law by means of interpretation. As to strong language, yes, but that seems to be a bug at this blog. Orin Kerr usually avoids it, at least more than many others do, but the 4A in his baby as much as health care is something that makes others passionate here.
August 31, 2010, 8:48 amStephen Lathrop says:
I’m one of those. Not a lawyer, and don’t know fourth amendment law. But I’m disturbed by legal arguments that assert expectations of privacy that people share almost universally, as evidenced by their actions, are in fact unreasonable expectations.
A prosecutor who investigates a case can with effort get information that any private party would be told is unavailable or even secret. If I can’t get cell phone location information, and nobody like me can get it, why doesn’t that create a reasonable expectation of privacy for that information? Only because the state can demand it, right? Isn’t that the real doctrine here, that you have a reasonable expectation of privacy until the state demands otherwise? Where does that leave the Fourth Amendment?
Do a thought experiment. Suppose there were proposed legislation to allow ANYONE to get cell phone location information. If passed, that would surely end any expectation for privacy for that information, and people would alter their behavior accordingly—making the information far less useful for surveillance. Obviously, prosecutors would oppose that legislation, because they rely on the fact that people do expect that privacy, and it’s only the ability to subvert that expectation that makes the information available and valuable.
What’s wrong with getting a warrant?
August 31, 2010, 8:58 amGino says:
A federal magistrate judge ruled against the government on 4th Amendment grounds. I don’t see a problem. Perhaps your efforts could be better directed.
August 31, 2010, 8:59 amJim Harper says:
Fair discussions distinguish carefully between law, legislation, doctrine, and dictum, among other terms of art. I think it’s fair to point out that Orin is trying to elevate the status of existing doctrine by calling it “Fourth Amendment law.” Maybe I’m doing the equal opposite by preferring it to be called doctrine.
The open question is whether this doctrine deserves to be treated as (settled) law. Use of the phrase “Fourth Amendment law” seems a strategy to foreclose that debate.
August 31, 2010, 9:01 amJustin says:
Jim Harper,
Professor Kerr is a strong believer in precedent as a mode of constitutional interpretation, so that’s what you get with him. I don’t think he’s trying to do any special manipulative tricks when he says “X law” by describing the body of precedent. In any event, as he is bound to tell you, certainly a magistrate judge is required to follow such precedent even if he believes it to be erroneous.
August 31, 2010, 9:06 amJeff says:
A quick point about the technology: Mobile phones register with the network and update their location from time to time independently of whether the user makes a call. The only way to be sure the phone is not sending location information to the network is to remove the phone’s battery.
More broadly, when 90%+ of the population carries around a device consisting of a microphone, radio, camera and,in many cases, GPS the potential for abuse is incredible. Perhaps Congress should provide some clarity rather than let the courts muddle through.
August 31, 2010, 9:16 amDG says:
{So much of the creeping infringement on personal liberty and privacy is driven by picking the closest available analogy (in existing law) without examining whether that analogy is close enough to merit application.}
This is a huge problem and has been for year. I remember in the late 1990s, law enforcement claiming that web site activity was equivalent to pen register data. And it might have been, legally, because the laws were ancient.
I’m not a lawyer – I’m an engineer, by training. So, I don’t know constitutional law. But I do know, as a citizen, that I’m disconcerted with location data being exempt from warrant requirements. Heck, I’m concerned about much of what can be obtained by the government, with a simple sworn statement by a law enforcement officer, which then gets dropped into a file cabinet, without judicial review.
This is my inherent problem with Roe v Wade – I would rather the solution have been an actual constitutional privacy amendment, which would have had much broader implications about the citizen/government relationship.
August 31, 2010, 9:26 amJohn Murdoch says:
I am not a lawyer either. I am a software developer and system architect, and I have designed and developed applications for tracking vehicles, truck trailers, and other mobile assets using both GPS and cellular telephone technology.
I don’t to make you guys paranoid–but you miss the point of what the government wanted from this cell phone data. Cell phone tower data is NOT analogous to phone call logs–cell tower data is far, far more invasive. That’s not the ravings of a maniac in a tin-foil hat–but the expert opinion of someone who has carefully watched cell tower traffic reports as a means to validate GPS reporting from vehicles.
Key point: your cell phone is communicating with two or three cell towers (usually more) constantly. Consider the last time you flew on a plane–you turned off your phone, flew to Los Angeles, and turned your phone back on when the plane landed. The phone rang–ever wonder how it is that the cell phone system knew you were in Los Angeles?
The cell phone system works with digital “control channels” that constantly communicate with each nearby cell tower. The phone (and the tower antennae) negotiate about which antenna “owns” the phone–the phone is handed off from tower to tower (and, across larger areas, switch to switch) all the time.
With the advent of digital cell phones, the phone “cells” are quite small. Thinking back to you, your phone, and your flight to Los Angeles, I can not only tell that you’re at LAX–I can tell which terminal you are in (and probably which part of the terminal). I can tell when you’re at the rental car lot, and I’ll see you move to a different cell before you’re on the I-5 freeway. Even if you never make or receive a call.
In fact, in some jurisdictions cell tower data is probably more effective in court. A GPS tracking device typically tracks a car–so if I were to slip a tracking unit under the dash of, say, Eugene Volokh’s car I could get a detailed record of where that car went. But I would NOT have any proof at all that Eugene was driving–or even in the car.
And GPS data isn’t all you (or television producers) think it is: if you’re inside, GPS data is useless. The signal strength from the satellites is trivial–GPS really only works outdoors.
By contrast, that cell phone data works indoors, and can easily be linked to other human events–such as an airplane ticket placing Eugene on United Airlines flight 28. The cell phone first connected to the cell tower that covers the western end of LAX runways at 8:08 local time, which coincides with FAA records showing when the flight landed. Cell tower records clearly show Eugene walking down the terminal, taking the bus to the rental car lot, driving to the I-5 freeway, and heading north to San Dimas.
And since I have similar cell tower data showing the whereabouts of Orin Kerr, and can track his movements to San Dimas at the same time, I have more than sufficient evidence to substantiate a, um, Volokh Conspiracy conspiracy.
In my (and I mean this) expert opinion, cell tower data is as good as, and frequently even better, a means of surveillance than GPS.
August 31, 2010, 9:35 amORID says:
It’s nice to see some cases coming up for the citizens. I’m not all that comfortable with the fact that we’ve placed the definition of “right to privacy” in the hands of 9 judges. A Constitutional Amendment does appear necessity, however both parties would be pretty hostile to that, so its hard to see any traction.
More broadly, the problem here is not with DOJ, but with Congress. When it enacted the SCA, Congress didn’t think through how courts would have a chance to interpret the law and hand down decisions clarifying the law. That’s a problem of statutory design that Congress needs to fix, I think, not the fault of DOJ.
I don’t agree that lower court judges can’t articulate on the right to privacy. For instance, hasn’t the Supreme Court ruled that there are “evolving standards and expectations” of privacy? Isn’t that what Griswold and Roe are all about?
Do we know that the party in this case who prevailed didn’t present a better-pleaded claim than the pen register case? In a way that distinguished this case from pen register?
August 31, 2010, 9:48 amJoe says:
Fair discussions distinguish carefully between law, legislation, doctrine, and dictum, among other terms of art
is “the Fourth Amendment actually says” a term of art too?
We can “fairly discuss” as much as you want, but again, realistically, an inferior judge follows Supreme Court doctrine — it is the “law of the land” as currently accepted in practice. This is so even w/o another person’s comment as to how Prof. Kerr follows doctrine under his legal philosophy.
August 31, 2010, 10:04 amGuy says:
Professor Kerr, hopefully these comments have taught you your lesson and you will never criticize a poorly reasoned decision that reached a popular result on the internet again.
August 31, 2010, 10:07 amOrin Kerr says:
Jim Harper,
I realize that you see existing doctrine as not “law,” but rather, as merely one Supreme Court’s view of what the law might be that is often wrong. But no lower court judges see it that way: If they adopt your view they get reversed, and they know that. Further, in my experience adopting your approach tends to lead us into debates with an Onion-esque quality, which doesn’t seem very academically interesting.
Justin,
I appreciate that, but that’s a problem writing a very long post at 2:30 am the first week of class, when you have to write at great length in a short time period about something that you don’t think is a hard question. If I had more time I’m sure I could have done better, and I regret that the post is not stylistically exactly what I would like. But that’s the nature of being short on time.
August 31, 2010, 10:09 amXmas says:
Just a tech disagreement here…
Chris,
I disagree, most phones are actively communicating with the towers. Phones ping home often so that the towers know where they are. Otherwise, the towers would have no idea where and when to transmit incoming calls, text messages, email updates, and any of the dozen other things a modern phone can check on regularly. A cell phone isn’t a passive radio that only touches the phone network during a call. When your cell phone shows “Searching For Signal” it’s actually looking for a cell tower to handshake with and not just sniffing the air for a radio signal.
Next time you’re on a conference call, but your cell phone next to the speakerphone’s mic. That clicking/bzzt bzzt noise your hear is your cell phone happily talking to the nearest/clearest tower.
August 31, 2010, 10:31 amORID says:
So the judge is relying on a law passed in 1999 to infer something about how Congress wants to treat the Stored Communications Act of 1986?
Think about it: Judge Orenstein is saying that Congress’s judgment about the privacy of cell-site records in a 1999 law not implicated in this case requires him to say that the privacy law Congress did enact that plainly covers this case is unconstitutional because it doesn’t reflect Congress’s judgment. That makes no sense: If you want to know Congress’s judgment about privacy, why not just follow the privacy law that Congress actually enacted? It is a strange paean to Congress’s judgment to use that judgment to invalidate Congress’s statute.
Did you intentionally leave out the fact that the earlier law was passed in 1986? Doesn’t Congressional knowledge in 1999 trump their knowledge in 1986, especially with respect to what type of data is stored? I think this is important. (I’m not sure if these dates are right).
Is it true, your argument is this:
Congress passed 18 U.S.C. 2703(c) in 1986.
When Congress passed the law the judge relies on in 1999, they did not update 18 USC 2703(c).
If they had intended to place those requirements onto 18 USC 2703(c) they would have done so.
I guess I would have to see the legislative history around the 1999 law update, I’m inclined to say that you are correct. However, Congress is always too sloppy and vague and has a problem.
August 31, 2010, 10:35 amBryan C says:
“Suppose there were proposed legislation to allow ANYONE to get cell phone location information. If passed, that would surely end any expectation for privacy for that information, and people would alter their behavior accordingly—making the information far less useful for surveillance.”
I think we, as a society, have already voluntarily moved toward that position. Location-awareness services are a selling point for modern smartphones. Entire business plans are built around the premise that cell phone users want to make their physical movements available to other people. And the phone’s internal GPS data is often supplemented by triangulating against the broadcast IDs of known wireless networks in the area, pinpointing your location even more specifically. You provide your location to the service provider, and they track it.
If you choose to broadcast your location then you can’t reasonably expect that information to be a secret. No more than unencrypted wi-fi traffic, publically broadcast SSIDs, travel on public roads, or physical street addresses are private. To maintain otherwise, IMHO, requires ridiculous legal and technical gymnastics.
August 31, 2010, 10:40 amTim McDonald says:
I have to say I agree with the judge here. Unless you believe that by using a cell phone I am agreeing to the government being able to determine my exact location, then this is clearly a violation of privacy at least.
I understand the cell phone tower used, and thus the general area I am in is going to be recorded, and thus potentially available to the government. But my exact location is NOT necessary for the cell phone to work, and should not be available even to a warrant.
That is the pure libertarian position, and I believe I agree with it.
Otherwise, it is time to give up cell phones.
August 31, 2010, 11:07 amAnotherAnon says:
Voluntarily? E911 and automatic location identification was an FCC requirement imposed despite industry opposition. If you’re required by law to build technology into your cell phone, you might as well try and market it as a “feature”. Thanks to the FCC we’ll never know whether consumers would have voluntarily “moved toward that position”. Also note that cell phones are becoming increasingly less optional, as more jobs (and even schools) require them.
With respect to the issue of “actively” or “choosing” to broadcast location, I think a technical/semantic distinction between ‘active’ in the sense of broadcasting a signal from the client device and ‘active’ in the sense that users deliberately choose to transmit (or are even aware of the existence of) such a signal. As Quon illustrated, even extremely intelligent and accomplished people often misunderstand how technology functions. (With respect to historical cell data at least.)
August 31, 2010, 11:18 amKevin says:
And here is the problem. Since the phone IS a “magic box” to most users, it is almost certain that they have no expectation that their privacy is compromised simply by carrying a cell phone. They may consider that making a call might locate them, but not when carrying a phone on standby (often mislabeled “off”). Reasonable expectation of privacy in its most pure form.
August 31, 2010, 11:24 amAnotherAnon says:
Voluntarily? E911 and automatic location identification was an FCC requirement imposed despite industry opposition. If you’re required by law to build technology into your cell phone, you might as well try and market it as a “feature”. Thanks to the FCC we’ll never know whether consumers would have voluntarily “moved toward that position”. Also note that cell phones are becoming increasingly less optional, as more jobs (and even schools) require them.
With respect to the issue of “actively” or “choosing” to broadcast location, I think a technical/semantic distinction between ‘active’ in the sense of broadcasting a signal from the client device and ‘active’ in the sense that users deliberately choose to transmit (or are even aware of the existence of) such a signal is in order. As Quon illustrated, even highly intelligent and accomplished people often have fundamental gaps in their understanding of how a particular technology functions. The operation of, e.g., cell towers, protocols, andnetwork backbones, servers, etc. tend to be transparent to the typical end user.
August 31, 2010, 11:27 amCarl Donath says:
Like the expansion of the 1st Amendment to include internet blogs as free speech, other rights must be expanded to maintain reasonable technical advancement which is in common usage as part of normal social & business activity. Sure you can maintain 4th Amendment privacy by staying home and locking your door and pulling the curtains and communicate only by mail – but that in effect shuts you off from modern society.
Yes, I know cell positioning data is available. Thing is, the government still had to ask someone (phone company) for it instead of gathering it via government agents directly. The phone company is acting as your proxy, gathering that data because you paid them to (to facilitate phone service) and with the understanding that nobody else would get that data. Should such information be subject to government seizure after all (gov’t demands data from provider), roaming full-body scanners (in the news of late) are also justified (middleman cut out, gov’t just gathers the data), as is a host of other perceptions which are newly observable despite Founding Fathers’ intent to protect.
To address prior analogies:
Unencrypted wi-fi traffic is akin to overhearing a conversation. Better analogy in this case is the gov’t compelling testimony from one of the participants in the conversation – 4th Amendment protected.
Publicly broadcast SSID is akin to putting your name on your front door for everyone to see. Better analogy is periodically mailing a letter to someone telling them where you are – 4th Amendment protected.
Travel on public roads is akin to someone listening to radio traffic to see who’s there. Better analogy is following someone around (or using a network of observers to same effect) recording their general movements – we call that stalking.
Physical street addresses are akin to phone numbers, published for general use. Better analogy is unlisted numbers, as the phone ID used in this tracking case is only for phone provider use.
The Constitution is not a suicide pact, neither in its origin nor in its eventual application to emerging technology. Information exchanged to technically facilitate what is otherwise considered private 4th-Amendment-protected information as a matter of normal 21st-century American life should, where reasonably possible and expected, retain Constitutional protection. For this case to go otherwise is to set the legal groundwork for the federal government to monitor your whereabouts at all times: hey, you’re broadcasting that info anyway, and they’ll need it to prosecute you if you commit a crime, right? While we’re at it, that step neatly covers gov’t vans driving by doing full-body passive-millimeter-wave scans on you at any time (you’re radiating that information too). I love Big Brother.
August 31, 2010, 11:27 amAnotherAnon says:
My apologies, it seems I accidentally submitted my previous post in the process of composition. The last paragraph should read:
With respect to the issue of “actively” or “choosing” to broadcast location, I think a technical/semantic distinction between ‘active’ in the sense of broadcasting a signal from the client device and ‘active’ in the sense that users deliberately choose to transmit (or are even aware of the existence of) such a signal is in order. As Quon illustrated, even highly intelligent and accomplished people often have fundamental gaps in their understanding of how a particular technology functions. The operation of, e.g., cell towers, protocols, andnetwork backbones, servers, etc. tend to be transparent to the typical end user.
August 31, 2010, 11:30 amlosantiville says:
“When the Stored Communications Act was passed, cell site data didn’t exist.”
SCA – 1986. First commercial AMPS network – Chicago 1983.
Orin, Have you ever written about what happened between the 19th century and the 20th century to change the understanding of the 4th to introduce the 3rd party doctrine and expand government search rights? And could libertarians say that those judicial changes were inconsistent with original intent?
August 31, 2010, 11:32 amDebrah says:
I’m sure this was offered in jest; however, it’s the best idea of the thread.
(As a side bar, I’d like to see a law enacted that places heavy restrictions on cell phone use in many, many areas.)
Everyone seems to desire a tethered lifestyle.
Constant access and connections to anyone….anytime.
There will always be a price to pay for desire.
And an even bigger price to pay for instant access.
I find the whiny patina surrounding this issue annoying.
Depending on circumstances, what’s “right” or what’s “invasive” becomes a moving target.
As with the Patriot Act, there are vehement detractors until circumstances have bearing on law enforcement strategies that might positively affect you.
August 31, 2010, 11:42 amruuffles says:
What happens in European and Asian countries that use SIM cards? Don’t most people buy a cell phone with cash, and then buy SIM cards with cash? It seems like this privacy issue is due to a quirk with how US cell phones are set up.
August 31, 2010, 11:58 amOrin Kerr says:
Losantiville writes:
I’ve written about the history of the third-party doctrine in the beginning of part I of this article at page 567. However, I’m not aware of any authority indicating that the third party doctrine is inconsistent with the original understanding or that it was only “judicial changes” that created it.
August 31, 2010, 12:35 pmdan says:
Prof. Kerr,
Terrific post. I have a question about your assertion that the Sup. Ct. decides what is a “reasonable expectation”:
The details of the reasonable expectations cases from crim law class are fading from my memory. But it seems that you are asserting that ‘reasonable expectation‘ is a question of law, not of fact — is that right? If so, it is a stark contrast with the “reasonable person” test in tort law, which is a question of fact for the jury.
Given that the founders came from a common law tradition where the test of reasonableness in tort law was already well-established, isn’t it probable that when they wrote the phrase “unreasonable searches and seizures” they were thinking of reasonableness as a question of fact to be adjudicated by a jury?
August 31, 2010, 1:00 pmMax Power says:
If I recall, the en banc court in Warshak — Judge Martin’s impression notwithstanding — didn’t actually hold that there was no reasonable expectation of privacy in the emails. It merely held that the Fourth Amendment question was unripe for review. So, while the panel decision was “wiped of the books” in the sense that it is no longer binding precedent in the Sixth Circuit, its “reasoning” was not disavowed or refuted. While I make no comment on the persuasiveness of Judge Martin’s reasoning in the Warshak panel decision, I don’t see how a citation to an out-of-circuit panel decision that was vacated on other grounds is any less appropriate, or carries any less force, than a citation to an out-of-circuit panel decision that remains binding in its circuit of origin, or at the very least, than a citation to a treatise or journal article.
As an aside, Mr. Warshak was subsequently convicted, after a trial in which the disputed emails were introduced. Just recently, a different panel of the Sixth Circuit heard the appeal from Mr. Warshak’s conviction, and Warshak’s attorneys once again argued that the SCA is unconstitutional. A decision is pending.
August 31, 2010, 1:07 pmOrin Kerr says:
Dan,
A constitutional reasonable expectation of privacy is not the expectation of a reasonable person in their privacy. See, e.g., Illinois v. Caballes (“the expectation that certain facts will not come to the attention of the authorities is not the same as an interest in privacy that society is prepared to consider reasonable.”). As for what the framers thought should be a question of fact for the jury, I don’t know of any evidence that the legal interpretation of the word “search” should be a question of fact. That is the issue here.
August 31, 2010, 1:10 pmOrin Kerr says:
Max writes:
I agree that a citation to a vacated panel decision is about the same as a citation to a treatise or journal. At the same time, if a treatise or journal made an argument about the law that was inconsistent with Supreme Court precedents, I would hope that a judge would follow the Supreme Court precedents rather than the scholarly article.
August 31, 2010, 1:13 pmJeff Mitchell says:
My issue isn’t that the cell phone data exists, but that it can be used by the government without a warrant.
I never knew, until I read this article, that “off” may be a phone simply on standby. I like the idea that the government doesn’t know where I am most of the time. For the one time in my life it might have helped, there was no coverage. So I got to walk 27 miles in the desert to the nearest road. That’s quite a bit for a sedentary office worker. Of course I can’t complain too much because I didn’t have a cell phone in the first place, but we did test coverage at that spot later to see if it would have helped. It wouldn’t have.
WeMost people have cell phones because they want to communicate, not to notify people where we are. I like the idea of being free of that tether, so I don’t have a cell phone. But at some point I’m going to need one, and I don’t want to give up my privacy to own one.For those who disagree with this post, I’d mention that I think he was saying the ruling was incorrect in the way it was reached, not that the conclusion was necessarily wrong. I can say, I believe the government should have to have a warrant to get the information we’re discussing. Also, it occurs to me that on occasion the Supreme Court reverses itself. In those cases, the lower courts obviously ignored the precedents of the Supreme Court to revive debate by starting up the judicial ladder again.
August 31, 2010, 1:22 pmSuperSkeptic says:
Great post; great comments thus far. I concede Professor Kerr’s points regarding the validity of the decision under current law/doctrine, but sympathize with the outcome. The biggest problem (with this decision, today) is Smith v. Maryland; it’s flat out wrong and has all the subsequent caselaw even remotely analogous (which Prof. Kerr is obediently interpreting) taking us in the wrong direction. When the Supreme Court caselaw is pointing that hard against your desired result, you gotta get creative – and, as we know, it ain’t always gonna look pretty…
I’ve only skimmed the ex ante magistrate article, but I had the same particularity objection addressed in part III(E). I was initially in opposition to the argument in the article, but have been fairly persuaded. (It really does emphasize how badly we need action – legislative or from the Court…)
August 31, 2010, 2:24 pmSchroedinger's Hamster says:
Chris Soghoian says:
The FCC, by way of the D.C. Circuit, says:
Pick one.
August 31, 2010, 2:26 pmJim Harper says:
@Orin: Though we’re near or at the point of diminishing returns, I’ll wonder aloud why you don’t find it “academically interesting” to observe the process by which doctrines crumble, but instead seem always to be working to reinforce (or reiterate) existing doctrine.
You may trivialize as Onion-esque people who find existing doctrine inapposite to current circumstances, and you may rail against decisions that seek to exploit seams in existing doctrine, but you might be missing out on what’s really interesting.
Why, for example, did Olmstead Fourth Amendment doctrine collapse giving rise to Katz doctrine? Will the shift to Katz and Harlan’s “reasonable expectation of privacy” dictum be the last? Of course not. Those questions are interesting, even if they threaten to stray from received opinion.
My goal, of course, is not keeping myself or others “academically interested,” but having Fourth Amendment doctrine that suits the technology and the times.
August 31, 2010, 2:42 pmMax Power says:
Well, yes. :)
August 31, 2010, 3:56 pmOrin Kerr says:
Jim Harper writes:
Jim, I think the problem is that you misunderstand what the “reasonable expectation of privacy” test is. It is a normative inquiry that is designed to “suit the technology and the times.” But it’s a normative inquiry that the Supreme Court gets to apply, not us. It is for that reason, among others, that a person’s tendency to complain that the law is “broken” and “not keeping up with the times” is directly related to the distance between his personal policy preferences and that of the median Supreme Court Justice.
August 31, 2010, 3:56 pmMatt Blaze says:
I’m still slogging through the decision and Prof. Kerr’s analysis, but from reading the decision and the comments here it seems that there is a wide range of understanding about how cellphone location actually works, the degree of spatial precision it yields, and how it has changed as the various technologies involved have evolved.
In June, I testified on the technology of cellular location before a House subcommittee investigating ECPA reform. I’m not a lawyer (I’m a computer science professor, who specializes, among other things, in surveillance technology), and my testimony was not advocacy for any party or position, but rather intended simply to explain broadly how the technology works. Perhaps readers here would find it helpful. http://www.crypto.com/papers/blaze-judiciary-20100624.pdf [warnining: pdf format, if you're squeamish about such things].
August 31, 2010, 5:34 pmSuperSkeptic says:
At the risk of over-stepping my bounds, I’ll attempt to arbitrate this little tiff with Mr. Harper.
I think Mr. Harper’s main problem (besides tone, which seemed slightly combative, to me at least), Professor Kerr, is the section of his comment that you didn’t quote.
I can relate to this complaint because I’ve had it before. You explained it once (roughly, my paraphrase here): that you were more interested in the actual implementation of the established theory and those implications rather than dwelling on the meta-theoretical doctrine or its esoteric “rightness” or “wrongness”. Consequently, this mode of analysis doesn’t focus on those questions, which in many ways, I suspect, are more interesting to Mr. Harper (and myself). It does, however, lead to the (I believe, mistaken) impression that you earnestly support the status quo. (And the blistering critique of any deviation from it incidental to your goal sure produces enough firepower for anyone so inclined…).
For example, Barnett and Kerr are on polar opposite sides of this methodological spectrum, if you will. That doesn’t mean that these differing methods cannot influence and complement each other quite a bit – and I think that they do. For certain, the paradigm shift (as I’ve come to call it) in theory that many of us believe is necessary in the Fourth Amendment context will not come if we remain ignorant of the “facts on the ground.” These are mutually reinforcing aspects – theory and practice. Professor Kerr’s approach seems to shed quite a bit of light on the latter, if not the former (and, I hope without seeming sycophantic, I think it does that too).
In any event, I’m looking forward to reading your linked article as well, Mr. Harper.
August 31, 2010, 5:37 pmOrin Kerr says:
SuperSkeptic,
I think the problem is that “new” theories of Fourth Amendment law tend to just rehash old debates about the law that have been had for decades. They tend to (1) Ask for a new law that better reflects the policy preferences of the asker, and/or (2) Misunderstand the essentially pragmatic nature of existing Fourth Amendment law. There are exceptions, but in general these sorts of inquiries are really old and tired. If we have to debate everyone’s personal “new” theory of what the Fourth Amendment should look like every time I blog about a new case, I’m just not going to bother.
It’s sort of like having dinner with that uncle who always wants to discuss his view about how the U.S. should never have entered World War I every time anyone at dinner mentions politics. It’s an interesting question, to be sure. But after you’ve debated it once, it’s hard to know why you’d want to go back and rehash the debate again every time you want to talk about politics.
August 31, 2010, 6:07 pmcbunix23 says:
# Of course, you need to communicate with a tower to
# make a call, but I think it is flawed to say this is an
# act of the user transmitting their location
# information.
Perhaps, but your cellphone periodically transmits location information without any user action. That’s how the cell phone network knows which tower to route calls TO your phone.
This is no academic exercise in law either. Look up the Julie Popovich murder in Columbus, OH. Adam Saleh was convicted on cell phone records placing him, or more precisely his phone if you want to be pedantic, in the vicinity of a cell tower where Popovich’s body was dumped.
August 31, 2010, 6:24 pmNorman Yarvin says:
I was going to recommend Matt Blaze’s paper, but I see that he’s already chimed in, posting a URL to it. One notable thing is that cell phone companies do more than just determine which cell site you’re talking to at the moment: they perform triangulation, measuring the distance from multiple cell towers, to find your location fairly exactly. It’s the same general principle that GPS works by, but doesn’t require your phone to have a GPS receiver.
August 31, 2010, 7:45 pmGLAdetariba says:
As a computer scientist,
August 31, 2010, 10:17 pmYou did not need to say you are not a lawyer. You talk with common sense so you cant be a lawyer. You are right , the precedent is preposterous
GLAdetariba says:
“One notable thing is that cell phone companies do more than just determine which cell site you’re talking to at the moment: they perform triangulation, measuring the distance from multiple cell towers, to find your location fairly exactly. ”
August 31, 2010, 10:20 pmYes, they are forced by universal services requirements ,to be able to direct 911 call and nothing else
Gov98 says:
I think the Judge in this case misunderstands so much about fourth amendment rights its scary. I may have an expectation of privacy that society would think reasonable as to what happens in my house. BUT when I commit a crime against my spouse I cannot use the fourth amendment to suppress the evidence that came to light despite that expectation of privacy.
The fact that people have some expectation of privacy in cell phone information is not (or at least should not seem to) what matters. We could change this statutorily later, but for example I have a reasonable expectation of privacy that my bank records won’t be gone through, BUT there is no warrant required for an SDT of someone’s bank records in almost any criminal case. The reason is I have no expectation of privacy in what I tell other people.
Cell Phones help facilitate a LOT of crime, some use throwaway phones for just that purpose, here’s the thing though, what I disclose to the phone company I cannot keep from the government when they care to find out, even if I expect that in 99.999% of cases they couldn’t care less, because…in 99.999% of cases they couldn’t. But when they find the cell phone and it has relevant info on location etc., well I shouldn’t have used a cell phone during the crime.
August 31, 2010, 10:38 pmGov98 says:
I’m going to rewrite this to make a point, just so it can be seen from a different (perhaps) perspective
Most people have cell phones because they want to communicate, not to notify people where we are. I like the idea of being free of that tether, so I don’t have a cell phone. But at some point I’m going to need one, and I don’t want to give up my privacy to own one.
Most people have bank accounts because they want to have a checking account, not to notify people about how much we make or spend or on whatever. I like the idea of living a cash lifestyle, so I don’t have a bank account. But at some point I’m going to need one, and I don’t want to give up my privacy to have one.
You can live a private lifestyle, but you actually have to do that. You can’t have your cake (the benefit that business interactions provide in our day to day life) and eat it to (have the fact that you conducting that transaction protected from all view).
August 31, 2010, 10:44 pmArthur Kirkland says:
First time I have heard the Fourth Amendment termed a “whiny patina.”
Must be a conservative thing, because I never hear that kind of talk among members of the liberal-libertarian alliance.
August 31, 2010, 10:55 pmStephen Lathrop says:
I would have misunderstood that too. Can you say more about why that assessment is reserved for a court, and not for a jury as a matter of fact? Is there any reasoning behind it, or is it just a matter of, well, that’s how we’ve always done it?
More broadly, it seems to me that those concerned about “judicial activism” might do well to shift the focus sometimes to the arguably factual questions appellate judges seem to think they get to decide on their own. Why, for instance, does an “originalist” get to decide for himself what the understandings of 18th century people might have been? Isn’t that just a license for a judge to swing a case any way he wants by tossing in a factual assessment of his own choosing? And when it happens, is it even subject to rebuttal, except maybe by the Supreme Court? Why aren’t questions about historical understandings considered matters of fact to be decided based on expert testimony from historians?
September 1, 2010, 6:09 amDebrah says:
No stereotyping, Arthur dah-ling!
I’m not a conservative, but a centrist.
Pro-choice, fiscally circumspect, and socially individualistic.
September 1, 2010, 8:18 amSchroedinger's Hamster says:
This would be notable if the Orenstein decision were about a government request for such triangulation data. But it isn’t; it’s about historical single-tower records. (For you FCC junkies, this is the difference between E-911 Phase II information — the precise location data derived from GPS or triangulation methods currently mandated — and the single-tower records that the FCC decided were far too imprecise to be useful to first responders.)
September 1, 2010, 11:04 amArthur Kirkland says:
I am a centrist, too. And, by local standards, a libertarian.
September 1, 2010, 11:28 amJim Harper says:
@Orin – What happens if your uncle is right? I think your response to SuperSkeptic reveals that you’re not intellectually curious, but rather desirous of seeing your policy preferences prevail.
“Wait a second!” you might reply, “It’s all the rest of YOU that are trying to warp Fourth Amendment law to your policy preferences!”
In fact, current Fourth Amendment doctrine IS a set of policy preferences, as such no more superior or inferior to other policy preferences. The fact that doctrine is on your side does not mean you do not have policy preferences.
If, as SuperSkeptic helpfully suggests, you actually think of yourself as a simple analyst of how cases square with doctrine, you wouldn’t call a case a “Stunner,” nor would you insinuate throughout your write-up that it’s wrong. You’d report on how it diverges from current doctrine and disinterestedly await the fall of the next shoe.
Choose a role: neutral analyst of Fourth Amendment doctrine vis a vis recent cases, or advocate for a set of policy preferences coterminous with current Fourth Amendment doctrine. But please don’t claim the former while executing on the latter. It’s very confusing to your uncle, and it might be the reason he keeps trying to rehash things with you.
Please pass the gravy.
September 1, 2010, 2:35 pmOrin Kerr says:
Dear Jim Harper,
As has happened before, I find your comments on these topics exceedingly strange.
It’s true that I have views of Fourth Amendment doctrine, and often (although not always) I have views of policy. Unlike you, though, I try my best to keep them distinct. I work hard not to confuse “is” and “ought,” or pretend that my “oughts” are a universal “is.” As a result, I can either talk doctrine or else I can talk policy. When I switch from one to the other, I do my best to say so forthrightly so as to not try to trick the reader. In light of that, I don’t have to “choose a role.” In fact, I would not be a professor if I only had one role I could play.
Your accusation that I am really just faking interest in doctrine because I feel strongly about the policy, and that at bottom I am being disengenuous, is quite regrettable and unjustified. As you would know if you were familiar with my blogging, I often devote lots of posts to arguing pretty passionately that a result is doctrinally incorrect without consideration of what is good policy (or even with the awareness that the result that is right is bad policy). Two examples that come to mind: my series of posts on Virginia v. Moore, and my series of posts on United States v. Grubbs. In both cases, I argued pretty passionately that the defendant should win on the law — positions that had zero support from the Supreme Court. But in one case I expressly recognized that my view was bad policy, and and the other I had no view one way or the other. I was following where the law went, though, and that’s what I cared about.
Orin Kerr
September 1, 2010, 4:40 pmOrin Kerr says:
One more point — I should add that as a matter of policy, I’m not entirely sure what my views are as a matter of the right policy call for location tracking. I think reasonable suspicion makes sense for some tracking, but probable cause probably makes sense for other tracking; and I’m really not sure where the lines should be drawn.I also think that the extent of tracking is as or more important than the threshold to get tracking info — that tends to be overlooked. On the whole, I think it’s actually a pretty hard policy problem.
September 1, 2010, 5:46 pmBryan C says:
The location awareness features in your average smartphone are far more comprehensive than the FCC requirement. The fact that the iPhone, for example, has a a very nice GPS, supplemented by wi-fi triangulation for indoor or city use, is most definitely a selling point.
I think it’s more than a technical distinction. When your phone is doing something which is arguably without your knowledge, like hopping cells, then that’s one thing. When you are telling your phone that you want it to constantly track your location and use that information in some way, probably involving an external service provider, then that’s quite another. That is what I meant by voluntary participation. It’s quite different from the government mandated E-911 requirements, which the user may believe is only initiated when they dial 911.
September 2, 2010, 1:02 pmJim Harper says:
I didn’t say you were “faking” interest in applying doctrine to promote your policy preferences. Perhaps you’re not aware of it happening. How do you get a fish to talk about water?
And perhaps you’ve read into my phrase, “what the Fourth Amendment actually says,” something other than “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”
Where else have I come even close to collapsing what Fourth Amendment doctrine is with what I think it ought to be? I did (thrice now) link to an article — still unread, I’ll wager — where I talk about curing a failed doctrine. We’ll leave that aside.
I’ve been talking about the way you present this case, and your flat unwillingness to acknowledge the challenges that advancing technologies hold for Fourth Amendment doctrine. You have lots of comments here edging around this problem.
This unwillingness is epitomized by your conspicuous use of the phrase “Fourth Amendment law” — my original point — by which you bind doctrine as tightly as you can to the text of the Fourth Amendment itself.
“Fourth Amendment law.” Not “Fourth Amendment case law.” Not “Fourth Amendment precedent.” Not “Fourth Amendment doctrine.” “Fourth Amendment law” — practically the words of the Framers themselves, huh?
More telling language choices: The decision is not “at odds” with cases. It’s not “likely to be reversed.” Not “an unusual break with precedent.” It’s “wrong” — a pejorative that has pretty strong normative connotations when everyone who works in this area knows that Fourth Amendment doctrine is under challenge.
One wouldn’t pick that up by reading your post, though. A lay reader (and they’re here) might think you’re calling out a magistrate as a buffoon. Comments like mine complete the record, and this extended back-and-forth would be obviated if you were to listen to comments, not just bat them away.
You are free, of course, to bat. Deride comments as Onion-esque commentary from a doddering uncle. Disqualify some comments as “policy.” But then you might get back some of what you give.
September 2, 2010, 2:59 pmOrin Kerr says:
Jim,
How about this:
(1) The decision is at odds with precedent and likely to be overturned.
September 2, 2010, 6:50 pm(2) I don’t know whether I like it as a matter of policy. My policy preferences here are uncertain.
(3) The Fourth Amendment should develop in a way that keeps pace with technology, as I have argued here and here among other places.
(4) The point made in (3) does mean that the Fourth Amendment should develop in a way to make access to historical cell-site records require a warrant. The general principle of (3) does not answer this concrete case.
Debrah says:
Beyond the spine of this argument, I find your tone unusually combative.
Exuding the vibe of someone with a personal agenda of sorts.
Decisions regarding this issue should, necessarily, be made with caution given “the challenges that advancing technologies hold” that you mention.
Avoiding the stridence of your tone in favor of one more lapidary.
Engraved and re-engraved gently, but insistently, by a dozen burins……decade after decade.
What really animates this truculent debate?
September 3, 2010, 10:14 am