Scott Forsyth, BridgeTower Media Newswires
For a change Verizon sent me a paper bill last month. It appears innocuous but appearances are deceiving.
On the last two pages is my “talk activity,” 47 entries showing the date and time of a call, duration, the other number, “origination,” and “destination.” From the entries one can deduce I spent most of the month in and around Fairport and Rochester with a trip to New York City the first weekend of May.
What the bill does not say and what you may not know is Verizon has collected and stored information on what part of Fairport, Rochester, and New York City I called from or received a call from. It also collects and stores information on where the call was terminated. It does so by recording the particular tower or towers pinged and the particular “sector” or direction on the tower(s) making the relay.
In an urban area each cell tower covers a circle between a half-mile and two miles wide. The sectors divide the circle into wedges having a radius as little as 60 degrees. Small cells, the latest in technology, enable providers to target one floor of a building, a waiting room, and even a single home.
What does this mean? Given the ubiquity of cellphone use, cell site location information can tell a lot about the movements of a person. Law enforcement is keenly aware of this fact and routinely demands the information.
In the first half of 2016 Verizon received 18,935 demands for cell phone location data. From July 2015 to June 2016 ATT received 75,302 demands.
The volume of information sought can be great. Take the case of Timothy Carpenter.
The FBI suspected him of being the mastermind behind a string of robberies in Michigan and Ohio. It sought and obtained three orders directing his cellphone providers to turn over 127 days of location records. What it received was 188 pages of “talk activity,” revealing 12,898 separate points of data, including information on where he prayed and slept.
From this data, refined by the identity of the sectors relaying his calls, the FBI placed him within one-half to two miles of four robberies. The government used this and other evidence to convict him. He was sentenced to 116 years of imprisonment.
The orders were not warrants and were not based on probable cause. Instead they were issued pursuant to the Stored Communications Act. A governmental entity need only offer “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication … are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
Carpenter, joined by the ACLU as an amicus, appealed. They argued the taking of the records was a search and required a warrant based on probable cause.
The Sixth Circuit Court of Appeals disagreed. United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016). On June 5 the Supreme Court granted certiorari.
The circuit court invoked the third party doctrine. A search occurs when government intrudes upon an area or gathers documents or other information about which a person has a reasonable expectation of privacy.
If a person shares the documents or information willingly with a third party, he loses any expectation of privacy. The government can then obtain the documents or the information from the third party without a warrant. Classic examples of documents and information shared are checks and deposit slips, United States v. Miller, 425 U.S. 435 (1976), and the telephone numbers dialed on a land line, Smith v. Maryland, 442 U.S. 735 (1979).
The doctrine operates as an on-off switch. If a person shares documents or information with a party, the material is no longer considered private, no matter how sensitive the material may be. Conversely, if a person does not share the documents or information, the material is considered private, no matter how benign the material may be.
Carpenter shared information about his location with his providers when he used his cellphone, both as a caller and as a receiver of calls. Therefore, he did not have a reasonable expectation of privacy in the information and the FBI could obtain it. That the request spanned more than four months and netted 12,898 points of data was irrelevant to the majority.
Not so to the concurring judge. She expressed “concern” about a “test that appears to admit to no limitation on the quantity of records or the length of time for which such records may be compelled.” She concluded there needs to be “a new test to determine when a warrant may be necessary under these or comparable circumstances.”
The Third Circuit agrees with the concurring judge. It gives magistrates the discretion to require a warrant if the location information will implicate a person’s privacy rights, such as his presence in a constitutionally protected space like his home. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304 (3rd Cir. 2010).
Three circuits agree with the majority in Carpenter. The Supreme Court will now be able to resolve this conflict.
Collecting and analyzing cellphone records, even the information about a person’s “talk activity,” can and will expose sensitive details about a person’s “familial, political, professional, religious, and sexual associations,” to quote Justice Sotomayor.
Technology has advanced greatly since the Supreme Court decided Miller and Smith. It is time for the Court to rethink the third party doctrine. Personal information we inadvertently share as part of everyday life should be protected.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
