The Supreme Court has yet to examine the issue of historical cell site location info(CSLI). It finally picked a case from the Sixth Circuit to review, years after the warrantless gathering of historic CSLI became a thing. So far, there"s not a single court in the nation that"s found historic CSLI to have an expectation of privacy. The Fourth Circuit Appeals Court briefly did, before reversing its own decision. The original decision had problems with the amount of CSLI gathered: 221 days worth. Upon further review, the court sided with the government and its Third Party Doctrine arguments.
This federal court decision from the Southern District of New York name-checks the pending SCOTUS review, but falls in line with every other decision in the federal court system. The defendant sought to suppress historic CSLI obtained without a warrant, arguing the collection of location data by cell companies is not the same thing as "voluntarily" turning these records over to a third party. (via Courthouse News Service)
From the decision [PDF]:
The relevant question here is whether Serrano voluntarily provided his location to his service provider such that he had no legitimate expectation of privacy in it. The complexity of that question is compounded by the public’s general ignorance regarding the mechanics of how cell phones function, the type of information collected by service providers every time a cell phone is used, or the scope and frequency with which such information is recorded. Serrano contends principally that the third party doctrine has no application to CSLI because it is “not knowingly and intentionally conveyed by the cell phone user to anyone but rather generated automatically by radio waves.” (Mot. at 15–16.) Serrano argues that cell phone users do not actively submit their location information to service providers, nor are they even aware that such information is recorded by service providers without their express consent.
The court disagrees with the defendant"s assessment. While it does recognize cellphones are as omnipresent as air, the generation of location data is a necessary function of cell service. Customers -- even if they aren"t familiar with the specifics -- do have a general idea their movements are being tracked by every cell tower they connect to.
Though cell phone users do not affirmatively disclose their location to service providers, or understand the breadth of information that is collected through a single phone call, they do know that cell service is necessary to activate their phones. At a minimum, when none of the service bars appear on the interface of a phone, users know that they are “outside the range of the provider company’s cell network.” And when they are in service, they understand that they must “transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell-tower usage.” While most people may not be aware of a cell tower’s esoteric functions, they nevertheless understand that by simply placing a call or receiving a text message, they are voluntarily disclosing something location-based and are cognizant that such information will then be used by service providers for a variety of purposes.
The court then goes on to make the argument that even if users weren"t voluntarily providing this data, the government would still be able to obtain it without a warrant because the information itself has no expectation of privacy.
However, that a person voluntarily discloses information to third parties does not end the Fourth Amendment inquiry. Privacy interests in such information may exist depending on their substance and nature. There is, of course, a difference between disclosing the phone numbers that are dialed to call someone and the details of a conversation arising from that call. Here, however, CSLI provides no details about a phone call other than the general vicinity where the user placed or received the call. Voluntarily disclosed location information corresponds not to the user’s precise location, but that of the nearest towers.
The court does seem to recognize the current jurisprudence on cellphone data can"t remain the way it is now: tied to a 1979 decision (Smith v. Maryland) that predates (and could not have foreseen) the explosion in cellphone use.
It is almost as if cell phone users must relinquish some privacy interests—at least related to their location—as a prerequisite to using a device so embedded in everyday life.
As everything stands now, it"s exactly that: cellphone users are generating tons of third party records that can be obtained without a warrant. This includes real-time and near-real time tracking of people"s location through tower pings or cell site simulators. For the most part, courts have been extremely hesitant to erect warrant requirements for so-called Third Party records.
This needs to change. Privacy expectations have changed. While most people are aware certain records must be generated to ensure cell service, very few agree the government should be able to track their movements without a warrant, especially over a long period of time. In this case, thirteen MONTHS of cell site location info was obtained by law enforcement, putting the 221 days in the Graham case to shame. When the courts ask themselves what is "reasonable" in terms of expectations of privacy, they need to spend more time considering how much has changed in the world of communications since 1979.
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